BENCH AT JAIPUR v. Dhanpal

Judgment

1. Dhanpal S/o Jansi, R/o Village Gambhira, Tehsil Nainwa, District Bundi. (Plaintiff)

2. Gokli W/o Jagannath (Deceased), R/o Village Thakra, District Sawai Madhopur. ----Respondents For Appellant(s) : Mr. Mirza Ishrat Beg For Respondent(s) : Mr. Raghuvendra Singh Mr. Deepak Pareek HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order REPORTABLE 12/05/2025

1. Instant second appeal is preferred by appellant defendant Gopal aggrieved from judgment dated 07.08.1995 in civil regular appeal No.04/1992 passed by learned Additional District Judge, Bundi whereby judgment and decree dated 26.05.1987 in Civil Suit No.10/1979 passed by learned Civil Judge, Bundi is affirmed.

2. The brief facts giving rise to instant second appeal are that respondent plaintiff Dhnapal has filed a civil suit on 06.06.1979 against Jagannath and Gopal with the averment that an agricultural land measuring 8 bhiga 16 biswas Khasra Nos. 898 and 900 situated in Village Gambhira, Dist. Bundi was agreed to be sold in Samwat 2030 for a sum of ₹7000/- by way of an oral agreement between the parties and in pursuant to this oral [2025:RJ-JP:23637] (2 of 20) [CSA-419/1995] agreement to sale defendant Jagannath (since dead) has handed over possession to the plaintiff. The plaintiff further averred that after payment of full sell consideration of ₹7000/- he continued in possession. The plaintiff has further averred that despite sell to plaintiff, the land in question (suit property) was sold to defendant No.2 (present appellant) and a registered sale deed was executed and registered on 14.04.1979. The plaintiff has filed a suit for specific performance and also cancellation of sale deed made in favour of present appellant defendant and further consequential injunction.

Both the defendants have filed written statement and denied any oral agreement to sell about the land and further denied the handing over possession of land to the plaintiff. The defendants have further pleaded that to grab the suit property, plaintiff has connived with close relative of defendant No.1 and FIR No.38/1979 was also lodged at P.S. Nainwa, Dist. Bundi. They further stated that entries in revenue record never exited or mutated in the name of plaintiff.

4. On the basis of the pleadings of the parties seven issued were initially framed and later on issue No.2 was amended and issue No.2A was additionally framed. Six witnesses were examined by plaintiff, whereas three witnesses were examined by defendants. Learned trial court has decided issue Nos. 1, 2, 2A and 3 in favour of plaintiff and issue Nos. 4 to 6 against defendants which resulted into a decree passed in favour of respondent No.1 plaintiff. The trial court has passed following decree on 26.05.1987: [2025:RJ-JP:23637] (3 of 20) [CSA-419/1995] “izLrqr okn esa ifj.kke Lo:i oknh dk nkok e; [kpkZ f[kykQ izfroknhx.k bl izdkj fMdzh fd;k tkrk gS fd izn”kZ ih&2 cspkukukek jftLVªh fnukad 17-04-79 fookfnr Hkwfe ds laca/k esa tks fd okni= dh pj.k la[;k&1 }kjk izfroknh la[;k&2 ds gd esa fd;k x;k gS og cspkuukek oknh ds f[kykQ voS/k vkSj csvlj gS vkSj oknh ds gd esa ;g cspkuukek fdlh izdkj dk dksbZ varj ugha j[krk gS] vr% cspkuukek fnukad 17-04- 79 tks fd izfroknh la[;k&1 ls izfroknh la[;k&2 us vius gd esa jftLVMZ djok;k gS mls fujLr fd;k tkrk gS rFkk f[kykQ izfroknh oknh ds i{k esa vUnj ,d ekg fooknxzLr Hkwfe [kljk ua-&898 jdok 4 ch?kk 8 fcLok ,oa [kljk ua-& 900 jdck 4 ch?kk 8 fcLok dh jftLVªh djk;sa] vU;Fkk ,d ekg ds ckn jftLVªh djkus ds fy, U;k;ky; ck/; gksxkA fooknxzLr Hkwfe ij izfroknhx.k fdlh izdkj dk gLr{ksi ckcr csn[kyh ugha djsa] blh rjg LFkkbZ :i ls ikcan fd;k tkrk gSA xzh’e N`fV~~V;ksa ds fnu ,d ekg ds le; ls dk ysaxsA blh dnj fMdzh rS;kj dh tkosA”

5. Aggrieved from aforementioned decree, both the defendants have preferred an appeal under Section 96 of CPC but same was dismissed on 07.08.1995 and the instant second appeal is preferred by present appellant defendant. During pendency of appeal before learned appellate court, defenant Jagannath has expired and his wife Gokli has been substituted in place of Jagannath but during pendency of this second appeal, respondent No.2 defendant has also expired, and deceased during pendency of appeal is recorded.

6. Learned counsel for appellant while relying upon grounds of appeal submitted that without any specific details, the plaintiff has made an initial averment that after making payment of full sell consideration of ₹7,000/- a receipt was obtained and after two years of filing of a suit an amendment application was moved by plaintiff to amend initial version to include that in Samwat 2030 [2025:RJ-JP:23637] (4 of 20) [CSA-419/1995] only ₹4000/- was paid but no thumb impression was obtained and later after three years, when ₹3000/- was paid then only defendant Jagannath has put his thumb impression on written document. He further submitted that there is no justification of change in version and both the courts below have failed to consider that the statement of plaintiff is not trustworthy and reliable. He further submitted that the entire case rests upon oral agreement to sell and there has to be very specific averment to prove all circumstances to show that in Samwat 2030 the intention of the parties was to sell disputed land. He further submitted that the receipt as claimed by plaintiff was challenged by the defendants as the same is forged but both the courts below have failed to take note of the fact that thumb impression of defendant Jagannath was not proved by any evidence. He further submitted that defendant Jagannath was illiterate and not able to understand the cleverness of plaintiff. He further submitted that defendant No.1 was issueless, so a close relative conspired with plaintiff to grab the land of defendant No.1. He further submitted that both the courts below have failed to take note of material contradictions and discrepancies in the statement of witnesses, sufficient to cast doubt on the claim of plaintiff, about oral agreement to sell.

7. He submitted that this suit is filed on the basis of alleged oral agreement to sell and subsequent execution of receipt to acknowledge the transaction but this receipt is not admissible in evidence as same is neither properly stamped nor executed in accordance with law. He further submitted that appellant is a bonafide purchaser for full value and after making a payment he [2025:RJ-JP:23637] (5 of 20) [CSA-419/1995] has legally purchased the land and he is liable for protection. He further submitted that all kind of defence is available for present appellant as he has purchased the property before filing of suit. He also submitted that from no evidence, the plaintiff was able to prove the fact that present appellant defendant was aware about any transaction between defendant No.1 and plaintiff about the land. He also submitted that the trial court has decided issue Nos. 2A and 2 only on the basis of findings of issue No.1 and same is contrary to law. He also submitted that plaintiff has filed a suit for specific performance but he has failed to establish basic ingredient to seek specific performance of oral agreement to sell.

8. Learned counsel for appellant has further referred revenue record and submitted that the land in question is already mutated in the name of appellant defendant and appellant defendant is enjoying the property with full right and possession and he is liable for all protection available as bonafide purchaser for full value. He further placed reliance upon judgment in case of Jagdish Prasad and Ors. Vs. Parshu Ram and Anr. 2013 (1) WLC (Raj) 696 and The Krishna Co-operative Housing Society Ltd. And Ors. Vs. Rajasthan Housing Board, Jaipur and Ors. (S.B. Civil Writ Petition Nos. 2027/1992 order dated 08.12.1992) and submitted that mere agreement to sell does not create any interest or charge on the property. He further submitted that any document which is improperly stamped and not registered as per law is not admissible in evidence.

9. Aforesaid contentions were opposed by learned counsel for respondent plaintiff and submitted that on the basis of oral agreement to sell, the plaintiff has purchased suit property from [2025:RJ-JP:23637] (6 of 20) [CSA-419/1995] defendant No.1 Jagannath and defendant No.1 has handed over the possession to the plaintiff. He also submitted that since then plaintiff is enjoying the possession of suit property. He further submitted that from the evidence on record, plaintiff has established agreement to sell between plaintiff and defendant No.1 and payment of sell consideration towards oral agreement for sell and handing over of possession to plaintiff. He also referred the execution of receipt to acknowledge the transaction and submitted that the claim of plaintiff is bonafide and proved from the evidence of the record. He further submitted that there is no law which prohibits such transaction or execution of receipt or acknowledgment of agreement and both the courts below have not committed any error by placing reliance upon the documents submitted by plaintiff.

10. He further referred judgment in case of R.K. Mohammed Ubaidullah and Ors. Vs. Hajee C. Abdul Wahab (D) by LRs and Ors. AIR 2001 SC 1658 and submitted that as a subsequent purchaser of property, the appellant is duty bound to make inquiry as to nature of possession or title or further interest, if any of the original purchaser over the property in question at the time of sell transaction. Her further submitted that original seller or excutant has not challenged the judgment of first appellate court therefore the appellant has no locus to challenge the judgment passed by the courts below. He further referred the judgment in case of Har Narayan (D) by LRs Vs. Mam Chand (D) by LRs and Ors. (2010) 13 SCC 128 and submitted that present appellant is not a bonafide purchaser for value therefor he is not entitled to seek any protection under the Specific Relief Act [2025:RJ-JP:23637] (7 of 20) [CSA-419/1995] or the Transfer of Property Act. At last, he referred judgment in case of Ramesh Chandra Agarwal Vs. Regency Hospital Ltd. AIR 2010 SC 806 and submitted that credibility of witness depends upon the reasons stated in the conclusion and while considering the evidence of both the parties the courts below have assigned specific reasons therefore no case is made out for interference as there is a concurrent finding.

11. Heard learned counsel for the parties. Perused the record and also perused the judgments as cited by both the counsels.

12. While considering the appeal on 12.12.1995, following substantial questions of law were framed by a Co-ordinate Bench of this Court: “(i) whether merely because the plaintiff was allowed to amend the written statement to modify his pleading could be held sufficient by itself to prove the fact that Rs.7000/-was paid by the plaintiff to respondent No.2? (ii) Whether the courts below have erred in relying upon oral evidence when there was documentary evidence available. (iii) Whether the amendment made by the plaintiff in the plaint in regard to payment of consideration showed that the plea was false? (iv) Whether the approach of the lower appellate court in deciding issue No.2 and 2A without discussing or assigning any reason vitiates the judgment? (v) Whether the sale made to the appellant and the rights of the appellant could be affected even though he was a bonafide purchaser for consideration? [2025:RJ-JP:23637] (8 of 20) [CSA-419/1995] (vi) Whether merely because of the previous agreement of the sale with the plaintiff could be sufficient to hold that the sale made to the appellant was void when it has not been proved or alleged that the appellant had the knowledge of the previous transaction. (vii) Whether knowledge of the previous agreement on the part of the seller could be deemed to be the knowledge of the appellant? (viii) Whether submission of final report by the police in the criminal case could have any effect on the present case? (ix) whether the courts below have erred in grating a decree of specific performance for executing a sale deed without there being a prayer for the same?”

13. Plaintiff Dhanpal has filed a suit on 06.06.1979 with clear averment of oral agreement to sell in Samvat 2030 and also payment of ₹7000/- to defendant no.1 Jagannath. Also, execution of a receipt on Miti, Ashad, Samvat 2030. As per difference in Vikram Samvat 2030 and Gregorian calendar, we deduct 57 from Vikram Samvat and it means that transaction was of 1973 but the suit is filed in 1979. In the entire plaint, not a single averment is made about readiness and willingness on part of plaintiff. The trial court has also not framed any issue on readiness and willingness of the plaintiff. The original relief claimed by plaintiff indicates that plaintiff has sought sale deed dated 14.04.1979, executed by defendant no. 1, is to be declared as null and void against rights of plaintiff. The framing of the suit clearly indicates that the Plaintiff has not sought any relief of specific performance in his prayer after Para 14 of the Plaint. [2025:RJ-JP:23637] (9 of 20) [CSA-419/1995]

14. Later the Plaintiff has amended his plaint and the Trial Court has permitted amendment on 14.01.1983 which is almost 3.5 years after filing of original suit and that too at the stage of evidence of Plaintiff. In amended Plaint filed on 19.02.1983, the Plaintiff has included relief of registration of sale deed in favour of Plaintiff. The amended Plaint also indicate that even the Plaintiff has not pleaded his readiness and willingness. Again, the Plaintiff has filed an application in Order VI, Rule 17 of CPC to amend the Plaint and same was allowed on 23.7.1983 and amended Plaint filed on 05.08.1983.

15. Aforesaid amendment reflects two important aspects. Firstly, the Plaintiff has initially not filed a suit for specific performance but later he included relief of execution of sell deed in pursuance to oral agreement. He also included details about transaction. Since there is no written agreement to sell as originally claimed by plaintiff therefore in a suit for specific performance based on oral agreement, the Court has to be very very cautious and meticulous. Herein this case a liberal attitude of trial court indicated that plaintiff was given unnecessary advantage to amend his version and include and amend the facts which clearly cast doubt on bonafides of plaintiff.

16. In all three plaints including subsequently amended version, the plaintiff has not made any averment about readiness and willingness on his part. Moreover, the transaction details were entirely changed from original plaint to amended plaint filed on dated 05-08-1983. It cast a serious doubt on the claim of the plaintiff. Moreover, alleged oral agreement was entered in 1973 whereas suit is filed in 1979 and first time amendment was sought [2025:RJ-JP:23637] (10 of 20) [CSA-419/1995] in 1983. The plaintiff has not made any averment about request to defendant no.1 to execute sell deed. The entire cause of action is based on execution of sell deed by defendant no.1 in favor of defendant no.2 on 17.04.1979. The suit is not based on any of denial or refusal to execute a sale deed by defendant no.1 in pursuant to oral agreement to sale executed between the parties in samvat 2030 (year 1973). There is no disclosure of cause of action about relief of specific performance of execution of sell deed particularly when the relief claimed after a period of more than three years. If an oral agreement to sell or mutual understanding between the parties was settled in 1973 then the suit has to be filed within three years or within three years of refusal to execute a document, but the suit is filed in 1979 and further amended in the year 1983, therefore the suit is barred by law of limitation and there is no averment or explanation on part of the plaintiff to conclude that suit is within limitation for purpose of execution of sell deed in pursuance to agreement to sell. Both the courts below have misunderstood the legal position particularly law of limitation and law of specific performance in treating a conclusion particularly when a relief for specific performance is a discretionary relief under Section 20 of Specific Relief Act.

17. In case of Sughar Singh Vs. Hari Singh (Dead) through LRS and Ors. (Decided on 26.10.2021 Civil Appeal No.5110/2021) Hon’ble Supreme Court after considering amendment in the year 2018 in the Specific Relief Act, by the Parliament, has held that specific relief is no longer discretionary relief but herein this case the entire case rests upon oral agreement to sell within disputed facts. [2025:RJ-JP:23637] (11 of 20) [CSA-419/1995]

18. An oral agreement to sell is valid under the Indian Contract Act and it is legally binding. An oral agreement to sell is also legally enforceable but parties seeking to enforce oral agreement has to prove its existence and terms through evidence like transaction witnesses, communication and financial transactions with attending circumstances.

19. In case of Brij Mohan And Ors. vs Smt. Sugra Begum And Ors. (1990) 4 SCC 147 Hon’ble Supreme Court has considered a case relating to specific performance of contract to sell immovable properties on the basis of oral agreement and held that there is no requirement of law that an agreement or contract to sell immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract to sell immovable property on the basis of an oral agreement along, heavy burden lies on the plaintiff to prove that there was consensus ad-idem between the parties for a concluded oral agreement to sell immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiff that vital and fundamental terms for sell of immovable property were concluded between the parties orally and a written agreement, if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement. [2025:RJ-JP:23637] (12 of 20) [CSA-419/1995]

20. As regard to consensus ad idem, Hon’ble Supreme Court observed in case of Mayawati Vs. Kaushalya Devi (1990) 3 SCC 1 and we are reproducing following para: “The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the Courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the Court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be material if the agreement is rescinded.”

21. In case of P. Prabhkara Rao Vs. R.Krishna AIR 2007 AP 163, A Co-ordinate Bench of Andhra Pradesh High Court has considered certain salient features in an agreement to sell of immovable property are rather common to all contracts and they include: “a) identity of the property; b) consideration for sell; c) mode of payment thereof; d) the timing and method of delivery of possession; e) the period, within which the contract must be concluded; and [2025:RJ-JP:23637] (13 of 20) [CSA-419/1995] f) the consequences must ensue, on account of non-compliance with the conditions.”

22. In a written contract, the terms and conditions are well explained and on the basis of terms and conditions, as mentioned in agreement to sell, the court can judge the intention of the parties but in oral agreement, it is necessary that the party claiming oral understanding or oral agreement between them has to bring all facts with full clarity and must adduce a reliable evidence to prove those facts. It means the oral agreement between the parties can be proved by adducing a reliable evidence but not otherwise.

23. In case of Nanak Builder and Investors Pvt. Ltd Vs. Vinod Kumar Alag AIR 1993 Delhi 315, a Co-ordinate Bench of Delhi High Court while considering a suit for specific performance has observed that existence of a contract is sine qua non for grant of relief of specific performance as the Specific relief Act refers to contract which can specifically enforce or otherwise. A relief of specific performance is discretionary, however it has to be exercised in judicious manner and cannot be exercised in arbitrary manner.

24. A perusal of evidence of PW-1 Dhanpal indicated that as per him he had an understanding with Jagannath to sell land at value of ₹7000/- and after one month or more he paid ₹4000/- to Jagannath and same is reduced in writing as Ex.P-1 but no thumb impression was made by Jagannath. The admission of PW-1 clearly indicated that at the time of oral agreement to sell, no payment was made to defendant No.1, but when part payment of ₹4000/- is made, Jagannath had not executed any document to [2025:RJ-JP:23637] (14 of 20) [CSA-419/1995] acknowledge the transaction. After three and half years, ₹3000/- was given by PW-1 to Jagannath and then Jagannath has put his thumb impression and two persons Radhakrishan and Kishanmala were witnesses. In cross-examination he admitted that at the time of understanding about sale only Radhakrishan was present but at the time of payment of ₹3000/-, four persons Kishan, Badri, Kishanmala, Ram Narayan were present as witness. PW-2 Surajmal claimed himself to be a witness of writing between Dhanpal and Jagannath. PW-3 is Radhakishan whereas PW-4 is Badrilal and PW-5 is Kishan. The plaintiff has examined Ram Narayan as Pw-6 and we have considered cross-examination of all these witnesses.

25. On the contrary, DW-1 Jagannath examined himself and he specifically mentioned that he sold the land to Gopal and after selling land he has handed over the possession of land to Gopal. DW-1 has denied execution of agreement in any writing or receipt of any money from Dhanpal. DW-1 has further stated that witnesses are relatives of plaintiff and stated that Malah is elder brother of father of Dhanpal whereas Ram Narayan is son of Malah and Radhakishan is nephew of Jamsi (father of Dhanpal). He also mentioned that Badri is brother in law of Malah. The admission in cross-examination clearly indicated that after selling land to Gopal, DW-1 has moved to another place. The plaintiff has not controverted any transaction in relation to his claim of agreement with DW-1 to prove bonafides of oral transaction. DW-2 is present appellant and has also supported the case with DW-1. Nothing came in cross-examination to show anything in favour of plaintiff. DW-3 Ramnath came in support of defendant. [2025:RJ-JP:23637] (15 of 20) [CSA-419/1995]

26. A perusal of evidence clearly suggests that the evidence of PW1 is not trustworthy for the reason that his evidence lacks the essential ingredient required to prove oral agreement between the parties in Samvat 2030. Here in this case, at the time of alleged agreement in Samvat 2030 (year 1973), no money was transacted as per PW1 and after one month or more, ₹ 4000/- was paid and no receipt was executed. But 3 years later, ₹ 3000/- was paid, then a receipt was said to be executed. As per PW1 two persons were present. Later he admitted presence of five persons and all are close relatives of plaintiff. The evidence suggests that no person relating to defendant no.1 is present at the time of transaction which clearly cast a doubt on the entire transaction, particularly when there is a claim of oral agreement between the parties and document exhibit P1 was not confronted to DW1.

27. Here in this case, the essential ingredient to establish oral agreement between the parties were not established. The evidence of plaintiff is not trustworthy and the evidence clearly suggests that whatsoever has been deposed by plaintiff is contrary to his claim. There is a discrepancy between the witnesses but both the courts have ignored the material contradictions between them. The evidence of plaintiff is not trustworthy and the evidence clearly suggests that whatsoever has been deposed by plaintiff is just a hypothetical version and both the courts have ignored the material contradictions between them.

28. The witnesses of plaintiff are close relatives with each other and none of them were able to depose the entire circumstances of the case as no person other than the plaintiff was present at the time when alleged oral understanding between the plaintiff and [2025:RJ-JP:23637] (16 of 20) [CSA-419/1995] defendant no.1 was initially agreed. Similarly, the witnesses were present only when alleged receipt of ₹3000/- after 3 years of transaction was executed. It indicated that the evidence is not trustworthy and both the court below have failed to appreciate the evidence.

29. In case of Ramesh Chandra Agarwal Vs. Regency Hospital Ltd. (supra) Hon’ble Supreme Court had considered provision of Section 45 of Indian Evidence Act which relates to opinions of experts and observed that the purpose of expert is to furnish the criteria or opinion to assist the process of justice and an expert is not a witness of fact.

30. In case of Thiruvengada Pilai Vs. Navaneethammal AIR 2008 SC 1541 Hon’ble Supreme Court has held that when there is positive denial by person who is said to have affixed finger impression and where the finger impression in the disputed document is vague and smuggy or not clear or make it difficult for comparison the court should hesitate to venture its decision based on comparison. Further held that when plaintiff alleged that first defendant executed agreement to sale in his favour and denied by first defendant then burden to prove that first defendant has executed agreement would be on plaintiff and not on first defendant to prove the negative. In taking note of various circumstances together creating doubt about genuineness of transaction, a suit for specific performance was dismissed.

31. In case of R.K. Mohammed Ubaidullah and O₹ Vs. Hajee C. Abdul Wahab (D) by LRs and Ors. (supra) Hon’ble Supreme Court has held that subsequent purchaser of property is obliged to understand neighbours in place of business as well as in [2025:RJ-JP:23637] (17 of 20) [CSA-419/1995] residential locality as that of seller so as to make inquiry about nature of possession or title or further interest before entering into sale transaction. The onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser and good faith is a question of fact to be considered and decided on the facts of each case.

32. Having considered the legal position and also the material available on record it appears that: (i) The plaintiff has initially filed a civil suit only to challenge sale date dated 17-04-1979 executed by defendant No.1 in favour of defendant No.2 (present appellant), but no relief is sought for specific performance of oral agreement to sell. (ii) The Plaintiff has not disclosed the details of payment of sell consideration while filing civil suit but after two amendments, the relevant disclosures were made and that too after more than three years of filing of plaint. (iii) The plaintiff has not made any averment or statement of readiness and willingness of specific performance of contract on his part. (iv) There is no evidence to show that the plaintiff has ever made any cultivation on land in question, to prove part performance. No evidence whatsoever is led to show girdavri or revenue record to fortify contention of possession. (v) There is no eye-witness to prove alleged understanding about sell in Samvat 2030 and no payment is made on date of oral agreement to sell. [2025:RJ-JP:23637] (18 of 20) [CSA-419/1995] (vi) At the time of payment of ₹4000/-, no receipt is executed and no witness is present with PW1. This bifurcation of payment is brought on record by amending the plaint, at belated stage. (vii) At the time of alleged payment of ₹3000/-, a receipt is executed by DW1, but who were in fact witnesses to this transaction is a disputed fact and same is not proved as there is discrepancy between the witnesses of the plaintiff. (viii) All witnesses produced by plaintiff to prove the transaction are close relatives of plaintiff and there is no averment to show that any of family member of defendant no.1 was present either at the time of agreement or at the time of payment. (ix) Nowhere it was established that after receipt of ₹3000/-, DW1 has affixed his thumb impression on Exhibit P1. There is no expert evidence on record to assist the court to show Exhibit P1 executed by DW1. (x) Defendant No.1 has denied from first instance to his evidence and he remained with present appellant and no where his bona fides were contradicted from evidence of plaintiff. (xi) The bona fides of present appellant is proved from his evidence and same is supported by DW1. The evidence clearly suggests that there is no transactory history about sell of land by DW1 to PW1. Moreover DW1 has shifted after selling land to DW2.

33. Having considered aforesaid circumstances, it appears that both the courts below have failed to consider that this case is based on oral agreement to sell and the duty of trial court is far more than that of examination of case relating to written agreement to sell. In this case, nowhere it was established that DW1 has ever affixed any thumb impression on any of the [2025:RJ-JP:23637] (19 of 20) [CSA-419/1995] document. There is a serious discrepancy about agreement to sell and payment of sell consideration and not noticed by the courts below which clearly cast a serious doubt on claim of plaintiff particularly when DW1 has turned up in evidence box to deny the claim of plaintiff.

34. In view of the discussion made herein above, it is apparent that Plaintiff has failed to prove an oral agreement to sell allegedly executed between him and Defendant No. 1. Similarly, no incident whatsoever is proved about payment of ₹4000/- after the alleged agreement to sell and ₹3000/- by way of receipt Exhibit P1. There is no evidence about handing over possession of land to plaintiff by defendant No.1 Jagannath.

35. In view of discussion made herein above, the Trial Court has committed serious error while allowing the amendment to the plaint and permitting the Plaintiff to amend his original version on two occasions without noticing that it would seriously prejudice the defence of defendants. The Courts below have seriously erred in relying upon evidence about oral agreement to sell. Similarly, the plaintiff has failed to prove payment of sell consideration. The contention of present appellant is proved to be bona fide and the entire transaction between DW1 and DW2 appears to be bona fide in nature. In view of discussion made herein above, substantial questions of law are decided in favour of Appellant Defendant No. 2, who is entitled to plead same defence as available to Defendant No. 1. The Courts below have committed serious error while passing a decree in favour of Plaintiff.

36. In view of discussion made herein above, the instant second appeal is hereby allowed and judgment and decree [2025:RJ-JP:23637] (20 of 20) [CSA-419/1995] dated 26.05.1987 in civil suit No. 10/1979 affirmed on 07.08.1995 in civil regular appeal No.04/1992 are hereby set aside and the civil suit preferred by respondent No.1 plaintiff is hereby dismissed.

37. No order as to cost. PREETI VALECHA /82 (ASHOK KUMAR JAIN),J