District Balodabazar-Bhatapara (C.G.). vs Advocates.

Judgment

2. Laxmikant Mishra S/o Shri Rajdhar, Aged About 40 Years, R/o Paras Nagar, Kasdol, P.H.No. 09, Tahsil Kasdol, District Raipur, (C.G.) (Plaintiff)

State Of Chhattisgarh Through Collector, Raipur, District Raipur, (C.G.). (Defendant No.2). ---- Respondents For Appellant For Respondent No. 1 For Respondent No. 2/State : Mr. Neeraj Pradhan, Panel Lawyer. : Mr. A.P. Sharma with Mr. K.K. Dewangan, Advocates. : Mr. H.V. Sharma, Advocate. Hon'ble Shri Justice Goutam Bhaduri & Hon'ble Shri Justice Radhakishan Agrawal C A V Judgment Per Radhakishan Agrawal J. (1) Challenge in this appeal filed under Section 96 of the Code of Civil Procedure, 1908 by the appellant/defendant is to the judgment and decree dated 29/08/2012 passed by the Second Additional District Judge, Baloda Bazar, District Raipur (C.G.) in Civil Suit No. 26A/2011; whereby the suit for specific performance of contract filed by the respondent No. 1/plaintiff was allowed. (2) The averments in the plaint, in brief, are that the defendant No. 1 is the owner and possession holder of the land bearing Khasra No. 460/1, Area 0.066 Hectare, at site 12 Decimal, situated at Village Kasdol, Patwari Halka No. 09, Tehsil Kasdol (in short “disputed land). In some part of the land, Kaccha house of five rooms is constructed and remaining part of the land is vacant. The defendant No. 1 entered into an agreement dated 23/06/2009 with the plaintiff for sale of the disputed land for Rs. 10,50,000/- and out of the said amount the plaintiff paid Rs. 50,000/- as advance on 23/06/2009 and Rs. 1,50,000/- as advance on 04/07/2009 to the defendant No. 1 before the witnesses. According to the said agreement, sale deed was to be executed by the defendant No. 1 by October 2009 and the balance amount of Rs. 8,50,000/- will be paid by the plaintiff at the time of execution of sale deed. Thereafter, the plaintiff sent a notice to defendant No. 1 for doing registry of the disputed house as per the agreement whereupon he assured of doing the registry on 05/01/2010 at the office of Sub Registrar, Kasdol. However, when defendant No. 1 did not turn up on the said date at the office of Registrar, plaintiff again contacted him but he gave false promise to the plaintiff. On 21/05/2010, the plaintiff came to know that the defendant No. 1 is trying to sell the disputed house to someone and when he contacted the defendant No. 1 he did not give any satisfactory reply, therefore, the present suit for decree of specific performance of contract against the defendant has been filed. (3) The defendant No. 1 in his written statement denied execution of agreement dated 23/06/2009 (Ex. P-1) with the plaintiff for sale of the disputed house in his favour and also denied receipt of any amount in this regard. He pleaded that he had fallen ill & due to family necessity he was in need of money for his treatment, he requested the plaintiff for giving him Rs. 50,000/- on credit and the plaintiff by taking undue advantage of the situation, got the signature of the defendant No. 1 on blank papers as a security and thereafter turned it into the sale agreement fraudulently with the help of his acquaintance who stood witnesses to the said agreement. Thus, the said agreement is illegal and forged. He pleaded that he is ready to pay Rs. 50,000/- which he obtained from the plaintiff as loan and he has not required to sale the disputed land. Even otherwise, the disputed house is the ancestral property of the joint Hindu Family, on which the son Kishan Sahu and daughters Ku. Sushila, Ku. Siya, Ku. Brihaspati, Ku. Geeta of the defendant No. 1 also have right by birth. Therefore, the present suit is liable to be dismissed. (4) On the basis of pleadings of the respective parties, the trial Court framed the issues for determination and after hearing Counsel for the respective parties, the oral and the documentary evidence adduced by them, by the impugned judgment and decree allowed the suit of the plaintiff directing the defendant to execute sale deed in respect of the disputed house in favour of the plaintiff after obtaining the remaining amount of Rs. 8,50,000/- from him within two months from the date of passing of the decree. Hence, this appeal by the defendant. (5) Since, during pendency of this appeal before this Court, appellant/defendant No.1 Manglu Ram died, his legal heirs were brought on record as appellant Nos. 1(a), 1(b), 1(c), 1(d), 1(e) and 1(f) vide order dated 10/11/2017. (6) Learned Counsel for the appellants submits that the Trial Court was not justified in passing the impugned judgment and decree by ignoring the oral and documentary evidence adduced by the defendant No. 1. The defendant No. 1 never entered into any agreement for sale of the disputed house to the plaintiff and he did not receive any amount towards the said sale consideration from the plaintiff. In fact the defendant No. 1 had fallen seriously ill and due to family necessity he was in need of money for his treatment. The defendant No. 1 obtained Rs. 50,000/- on credit from the plaintiff. However, the plaintiff taking advantage of the situation, got signature of the defendant No. 1 on blank papers as a security and subsequently created agreement by misusing those papers. The disputed house is the ancestral property of the defendant No. 1 and as such his children also have right over the said property. It is a well settled principle of law that when the property belongs to the Joint Hindu Family and one of the co-sharer executes agreement for sale of the whole property, the Court should not pass a decree for execution of such sale deed. (7) On the other hand, learned Counsel for the respondent No. 1/ plaintiff submits that the respondent No. 1/plaintiff is still ready and willing to perform his part of agreement and even he is ready to purchase the disputed land at the present market value. He submits that the defendant No. 1 has properly executed the agreement for sale of disputed land and defendant No. 1 got Rs. 2 lakh as earnest money before the witnesses and voluntarily executed this agreement to sale for a consideration of Rs. 10,50,000/-. Plaintiff is ready and willing to comply with his part of the contract. The defendant No. 1 avoided to execute the sale deed before Sub Registrar Office where plaintiff was present on 05/01/2010 with an amount of Rs. 8,50,000/-. He further submits that the trial Court considering all the relevant aspects of the matter, the overall evidence on record as well as the conduct of the parties has rightly passed the impugned judgment and decree in favour of the plaintiff which needs no interference by this Court. Reliance has been placed on the judgment in the matter of Maharu V. Hemraj (died) through his legal representatives, AIR 2014 Bombay 124. (8) We have heard learned Counsel appearing for the parties, perused the pleading and the evidence available on record. (9) PW-01 Laximikant Mishra plaintiff states on affidavit under Order 18 Rule 4 of the CPC that the defendant No. 1 contacted him for sale of the disputed land claiming that the said land is free from all encumbrances and is of his ownership and title and thereafter entered into an agreement with the plaintiff on 23/06/2009 (Ex.P-1) for sale of the said land for Rs. 10,50,000/-. Thereafter, on 23/06/2009 he gave Rs. 50,000/- in presence of witnesses to defendant No. 1 and on 04/07/2009 gave Rs. 1,50,000/- in presence of witnesses to defendant No. 1. When defendant No. 1 did not execute the registered sale deed by the stipulated time, the plaintiff sent a registered legal notice to him vide Ex. P-2, the postal receipt is Ex. P-3, acknowledgement is Ex. P-4. Plaintiff made a report to the Police against defendant No. 1 in this regard and vide Ex.P-5 the Police informed the plaintiff that this matter is not worth interference by the Police and advised him to take recourse to the competent Court. When the plaintiff came to know that defendant No. 1 is trying to sell out the disputed land to some other person, he got a general notice published in the newspapers vide Ex. P-6 & Ex. P-7. Ex. P-8 is Map of the disputed land, Ex. P- 9 & Ex. P-10 are the copy of Form B-1 and Khasra Panchshala of the disputed land. In cross-examination he admits that he knows the father of the defendant No. 1 namely Dileram Sahu and that after the death of Dileram Sahu, his property was inherited by defendant No. 1. He also knows that defendant No. 1 has one son and five daughters, of which one daughter has died and they all are living in the same house. (10) PW-02 Ghanaram Sahu states that the agreement dated 23/06/2009 was executed between the parties in his presence and he admits his signature on the said document. He admits that the disputed house is the ancestral house of the defendant No. 1 in which defendant No. 1 and his daughters are living. (11) PW-04 Firtu Ram Sahu also admits execution of agreement Ex.P-1 between the parties in his presence and admits his signature on the said document. He also admits that the suit land is the ancestral property of the defendant No. 1 and his children are living there with him. (12) DW-01 Manglu Ram/defendant No. 1 states that the disputed land is the ancestral property in which he is living with his family and there is Badi in the vacant land. He states that his four daughters namely Ku. Sushila, Ku. Siya Sahu, Ku. Brihaspati Sahu, Ku. Geeta Sahu and son namely Kishan Sahu also have right in the said house as per Hindu Law. He admits that due to his poor financial condition and illness, he had taken Rs. 50,000/- from the plaintiff on credit and the plaintiff fraudulently got his signature on paper whereas he has never executed any agreement with the plaintiff for sale of the disputed land. (13) From the evidence of the plaintiff, his witnesses as also the evidence of defendant No. 1 and witnesses, it is clear that the disputed land was inherited by defendant No. 1 from his father namely Dileram after his death and that defendant No. 1 has one son and five daughters, of which one daughter has died. Thus, the disputed land is not the self-acquired property of defendant No. 1 but it is the ancestral property in which the children of defendant No. 1 being coparceners also have right. (14) PW-01 Laxmikant Mishra respondent No. 1/plaintiff stated in his statement about the execution of agreement to sale Ex. P-1 between him and defendant No. 1/Manglu Ram. Plaintiff admitted in cross examination that he did not give Rs. 2 lakh to Manglu Ram before writing the agreement. He further admitted that he did not mention in his affidavit that Manglu Ram asked him to give Rs. 50,000/- and Rs. 1,50,000/-. Plaintiff subsequently admitted that in agreement Ex. P-1 there is no signature of defendant No. 1 or any witnesses till paragraph 6. He admits that only Rs. 50,000/- is mentioned in para 2 of the agreement and that Manglu Ram received Rs. 50,000/- from him. However, he volunteers that on the backside of the agreement of first page, Manglu Ram admitted to have received Rs. 1,50,000/- from the plaintiff. (15) PW-02 Ghanaram who is a witness to the alleged agreement Ex. P-1 states that whatever was written in the stamp paper was written on one page only. He submits that stamp paper was signed by himself and Manglu Ram/defendant No. 1 and Laxmikant/ plaintiff. He also admitted that plaintiff did not give Rs. 2 Lakhs to Manglu Ram/defendant No. 1 on the day when document Ex. P1 was written. The witness himself admits that earlier Rs. 50,000/- was given by plaintiff to defendant No.1. PW-02 also stated that subsequently plaintiff Laxmikant Mishra gave to defendant No. 1 Rs. 1,50,000/-. All transactions happened before me. (16) PW-04 Firtu Ram admits that on the day when the agreement was written, Rs. 2 lakh was not given by plaintiff to defendant No. 1 and only Rs. 50,000/- was given. He admits that the agreement was written on one stamp paper only and that the first page of the agreement does not bear the signature of Manglu Ram/defendant No. 1 or Laxmikant/plaintiff. He has stated that on 23/06/2009 Rs. 50,000/- was given by Laxmikant/plaintiff to Manglu Ram/ defendant No. 1. (17) It is worthwhile to note here that the sale amount of Rs. 10,50,000/- is not mentioned in the first page of agreement whereas it is mentioned that on 23/06/2009 defendant No. 1 obtained Rs. 2 Lakhs in presence of witnesses from the plaintiff. (18) From perusal of the document Ex. P-1 it is seen that there is no signature of the parties and the witnesses on the said page whereas on the back side of the stamp paper it is mentioned that on 04/07/2009 Rs. 1,50,000/- was received and the name of one Kishan Sahu is also mentioned. Usually the receiver puts his signature below the details of the amount received. In page 2 of the agreement it is handwritten that presently Rs. 50,000/- is received as advanced whereas the signature of the defendant No. 1 is on the right side of the said page. However, the plaintiff has not proved as to who had written about receipt of Rs. 50,000/-. Though on the first page of Ex. P-1 it is mentioned that advance payment of Rs. 2 Lakhs was received on 23/06/2009 in presence of witnesses but the said fact has also not been proved by the plaintiff. The plaintiff’s witness also admit that only Rs. 50,000/- was given to defendant No. 1 on 23/06/2009 and not Rs. 2 lakhs as contended by plaintiff. In his oral evidence the plaintiff has stated that he paid Rs. 2 lakh in two installments but the same is contrary to the fact mentioned in first page of the agreement in para 6. (19) In para 26 of his cross examination the plaintiff admits that on 05/01/2010, he did not have Rs. 8,50,000/- in his account and that he arranged the said amount from his relatives and himself as he was having Rs. 5 lakhs only. However, the plaintiff has nowhere mentioned in his affidavit as to who are those relatives from whom he arranged the requisite amount. PW-05 Kunjbihari, document writer states that the buyer purchases the stamp paper on the basis of sale consideration and admits that plaintiff did not bring any stamp paper before him. (20) Having gone through the oral and documentary available on record, the admission of the parties and their witnesses it stands proved that the disputed house is not the self-acquired property of defendant No. 1, rather it being the ancestral property, the defendant No. 1 alone had no right to enter into any agreement for sale of the same with the plaintiff as admittedly the defendant No. 1 has one son and daughters who also have right and share in the said property. The evidence also goes to show that the plaintiff was well aware of the fact that defendant No. 1 is not the sole owner of the disputed house but it has been inherited by him from his father after his death and that defendant No. 1 has five children living with him in the said house. This apart the agreement Ex. P-1 does not bear the signatures of the parties and the witnesses as discussed above and suffers from many discrepancies and improvement which make it doubtful. (21) The Trial Court has not properly appreciated the evidence on record which go to show that the disputed property was the ancestral property in the name of Dileram Sahu, father of the defendant No. 1 and as such apart from the defendant No. 1, the other family members were also having right in the said property. Being so, the impugned judgment and decree passed by the Trial Court is not sustainable in law and is liable to be dismissed. (22) Having gone through the judgment relied upon by the learned Counsel for the respondent No. 1/plaintiff and principle of law laid down therein, in the given facts and circumstances of the present case, the aforesaid judgment being distinguishable on fact is of no help to the respondent No. 1/plaintiff. (23) In the result, the impugned judgment and decree is hereby set aside. Plaintiff is not entitled to get the relief sought for. Accordingly, the defendant No. 1 is directed to return Rs. 50,000 (Fifty Thousand Only) to the plaintiff within two months with interest @ 6% per annum from 23/06/2009 till payment. The appeal is allowed with that extent. (24) A decree be drawn up accordingly. -Sd/- (Goutam Bhaduri) Judge -Sd/- (Radhakishan Agrawal) Judge Chandrakant