Chattisgarh High Court
Vijay Kumar Karande vs Madanlal Navlani on 13 December, 2022
Page 1 of 10
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 13/09/2022
Judgment Delivered on : 13/12/2022
FA No. 382 of 2017
1. Vijay Kumar Karande S/o Late Shri Rajaram Karande, R/o Ward
No. 23, Juni Hatari Near Juni Hatari, Ram Mandir, Rajnandgaon,
Civil And Revenue District Rajnandgaon (C.G.).
---- Appellant
Defendant
Versus
1. Madanlal Navlani S/o Sajjanmal Mavlani, Aged About 54 Years,
R/o Lalbagh, Lane No. 3, Sindhi Colony, Rajnandgaon, Civil And
Revenue District Rajnandgaon (C.G.).
---- Respondent
Plaintiff
For Appellant : Mr. Gyan Prakash Shukla, Advocate appears on
behalf of Mr. Anup Majumdar, Advocate.
For Respondent : Mr. V.K. 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 read with Order 44
Rule 1 of the Code of Civil Procedure, 1908 by the appellant/
defendant is to the judgment and decree dated 26/08/2013 passed
by the District Judge, Rajnandgaon (C.G.) in Civil Suit No.
03/A/2011; whereby the suit for specific performance of contract
filed by the respondent/plaintiff was allowed.
(2) The averments in the plaint, in brief, are that the defendant entered
into a written agreement dated 03/10/2009 with the plaintiff for sale
of his house bearing Nazul Sheet No. 48-A, Plot No. 179, Area 54
Square Meters, situated at Juni Hatri, Rajnandgaon (in short
"disputed house) for an amount of Rs. 11 Lakhs and out of the said
amount the defendant obtained Rs. 11,000/- cash and account
payee cheque of Rs. 40,000/-. According to the said agreement,
sale deed was to be executed by the defendant by 31/03/2010.
However, on 22/03/2010 the defendant sent a notice through his
wife and minor son to the plaintiff stating therein that the disputed
house being ancestral property, the defendant has not right to sell
the same. Thereafter, the plaintiff sent a notice to them for doing
registry of the disputed house as per the agreement whereupon
they assured of doing the registry after about 7-8 months.
However, in January, 2011, the plaintiff came to know that the
defendant is trying to sell the disputed house to someone and
when he contacted the defendant 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 in his written statement denied execution of
agreement dated 03/10/2009 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 in the year 2009, he had
fallen ill and was in need of money for his treatment, he requested
the plaintiff for giving him Rs. 51,000/- on credit and the plaintiff by
taking undue advantage of the situation, got the signature of the
defendant on blank papers 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. The disputed house is the ancestral property
of the joint Hindu Family, on which the wife of the defendant Smt.
Sunita and his son Vishal also have share but they have not been
made a party. 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. 10,49,000/- from him within
three months from the date of passing of the decree. Hence, this
appeal by the defendant.
(5) Learned Counsel for the appellant/defendant 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. The defendant 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 in the year 2009, the defendant had fallen seriously ill and
was in need of money for his treatment. The defendant obtained
Rs. 51,000/- on credit from the plaintiff. However, the plaintiff
taking advantage of the situation, got signature of the defendant on
blank papers and subsequently created agreement by misusing
those papers. The disputed house is the ancestral property of the
defendant and as such his wife and son 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.
(6) On the other hand, learned Counsel for the respondent/plaintiff
submits that the respondent/plaintiff is still ready and willing to
perform his part of agreement and even he is ready to purchase
the disputed house at the present market value. 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 judgments in the matter of
K. Prakash v. B.R. Sampath Kumar, (2015) 1 SCC 597, Narinderjit
Singh v. North Star Estate Promoters Ltd., (2012) 5 SCC 712,
Nadimiti Suryanarayan Murthy v. Kothurthi Krishna Bhaskara Rao
& Others, (2017) 9 SCC 622 and Staya Jain (Dead) Through LRs.
& Others v. Anis Ahmed Rushdie (Dead) LRs. & Others, (2013) 8
SCC 131.
(7) The appellant/defendant has filed an application under Order 41
Rule 27 of the Code of Civil Procedure, 1908 for taking additional
evidence on record, it is the copy of plaint filed by the sister of the
appellant namely Smt. Anjita Hirverkar and written statement
alongwith copy of plaint in Civil suit No. 40/A/2013 and counter
claim of Smt. Sunita Karande (Defendant No. 2 therein). Perusal of
the plaint shows that in above case, filed by the sister of the
appellant, the appellant Vijay Karande and his wife Smt. Sunita
Karande was a party in that case and also written statement
alongwith counter claim was filed by Smt. Sunita Karande (wife of
appellant). It is clear that the appellant alongwith his wife very well
know about the documents which is intend to produce. Under
Order 41 Rule 27 of CPC, the party seeking to produce additional
evidence shall established that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or could
not, after the exercise of due diligence, be produced by him at the
time when the decree appealed against was passed. It shows that
when the present case was pending, the document was well within
the knowledge of appellant, so looking to the above observation,
under Order 41, Rule 27(aa) of CPC, plaintiff shall not be entitled
to produce above documentary evidence in the Appellate Court.
(8) We have heard learned Counsel appearing for the parties, perused
the pleading and the evidence available on record.
(9) PW-01 Madanlal Navlani states on affidavit under Order 18 Rule 4
of the CPC that the defendant entered into an agreement dated
03/10/2009 (Ex. P-1) for the sale of disputed house to him for a
consideration of Rs. 11 Lakhs and he paid Rs. 11,000/- cash and
gave an account payee cheque of Rs. 40,000/- to him as advance
to the defendant. It was agreed between the parties that registry of
the disputed house was to be done by 31/03/2010 but the wife and
minor son of the defendant sent a notice (Ex. P-6) to him raising
objection to sale of the disputed house in his favour on the ground
that the said property being ancestral property they also have
share in the same. In January 2011 he came to know that the
defendant and his wife are trying to sale the disputed house to
some other person and despite his repeated request the defendant
did not get registry of the disputed house done in his favour. This
witness admits his signature on the agreement dated 03/10/2009
(Ex. P-1). He has produced the Nazul Maintenance Khasra Ex. P-2
of the disputed house and his three Bank passbooks Ex. P-3 to Ex.
P-5.
PW-01 Madanlal Navlani plaintiff admits in para 12 that as
per his knowledge except the house (disputed house) in which the
defendant and his family are living, there is no other house of the
defendant. In para 13 he admits that as per Maintenance Khasra
Ex. P-2, the disputed property is in the name of Rajaram (father of
the defendant) and that the defendant Vijay Kumar Karande, his
wife Sunita Karande and son Vishal Karande are living in the
disputed house. He admits that he did not enter into any
agreement with Sunita and Vishal regarding sale of the disputed
house. In Para 14 he admits that he did not make any application
to the District Magistrate for obtaining permission in respect of
interest of the minor son for sale of the disputed property and that
no such application was made by the defendant.
(10) PW-02 Harbhajan Singh and PW-03 Abdul Qadar admits execution
of agreement dated 03/10/2009 between the parties and their
signature on the said document. They also admit that the plaintiff
had given Rs. 11,000/- cash and an account payee cheque of Rs.
40,000/- to the defendant. However, PW-02 Harbhajan Singh
states that he cannot tell as to where the document (Ex. P-1)
executed.
(11) DW-01 Vijay Kumar Karande states of his affidavit under Order 18
Rule 4 that the defendant is a Hindu and is governed by the
Mitakshara branch of Hindu Law. He is a member of a joint family
consisting of his wife Smt. Sunita Karande and minor son Vishal
Karande. That the property in dispute is not self-acquired property
of the defendant, but is an ancestral property, which was
purchased by defendant's father Mr. Rajaram Karande in his own
name by selling his forefather's wealth and ornaments, which all
official records Khasra B-1 was registered in the name of Rajaram
Karande. The property of this paternal joint family has not been
partioned till date, its grandson Vishal Karande of Rajaram
Karande and daughter-in-law Smt. Sunita Karande have equal
rightful share. He has produced document Ex. D-1 i.e. sale deed
dated 09/06/1978 executed by Bharat Das in favour of Rajaram
Karande, father of the defendant of the disputed land and has also
filed the Maintenance Khasra of the disputed land as Ex. D-2.
DW-01 Vijay Kumar Karande states that his father died in 1997-
1998 and thereafter he got his name registered over the disputed
house.
(12) However, no relief has been sought by the plaintiff that the
agreement entered into by the defendant with the plaintiff is also
binding on the wife and son of the defendant. In this regard, the
Trial Court has observed that if the wife and son of the defendant
have any right over the disputed property and the same has been
sold without there being any valid requirement, they can file a
separate suit. It has been further observed by the Trial Court that
so far as the defendant is concerned, neither the agreement is void
nor is it voidable but it can be voidable for the other members of
the Joint Hindu Family. As per written agreement Ex. P-1,
execution of the sale deed was to be done by 31/03/2010 and from
the evidence adduced by the plaintiff itself it is clear that prior to
the said date, the wife and son of the defendant sent a legal notice
to the plaintiff raising objection to sale of the disputed house by the
defendant.
(13) From the perusal of the document of Ex. D-1 i.e. copy of the sale
deed it is clear that the disputed house was originally purchased
by father of the defendant namely Rajaram and as per Ex. D-2
Rajaram was the owner of the disputed house and after his death,
on dated 06/06/2005 the disputed house was mutated in the name
of the defendant. Perusal of the document Ex. D-2 shows that as
per dated 16/07/2010 passed in Revenue Case No. 270/A/06, year
2009-2010, name of the wife of the defendant was also registered
alongwith defendant. According to the defendant, the disputed
property is ancestral property, in which his wife and son also have
right. In the notice Ex. P-6 sent by the wife and son of the
defendant to the plaintiff, it is stated that Vishal Karande being
grand son of Rajaram Karande, the owner of the disputed house
and has right over the disputed house since birth. In para 3 of the
said notice it is stated that agreement for sale of the disputed
house was done without informing them and without obtaining their
consent. It is further stated that the defendant is indulged in bad
habits, he also remains drunk as a result of which his wife and son
have to face severe physical and mental agony and since the
plaintiff by taking advantage of his bad habits and without their
consent entered into an agreement with the defendant for sale of
the disputed house, they have strong objection to it.
(14) Upon close scrutiny of the entire oral and documentary evidence
available on record, the admission of the respondent/plaintiff, it is
clear that the disputed house is not possessed or owned
exclusively by the defendant but it being an ancestral property, the
defendant alone had no right to enter into any agreement for sale
of the said house with the plaintiff. Though the name of the
defendant is recorded in Nazul record in respect of the disputed
property but mere recording of name of the person in the revenue
record does not make him owner of the land. 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 Rajaram Karande, father of the defendant and as such apart
from the defendant, 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.
(15) Perusal of the citation presented by respondent, appears that the
facts and circumstances of the present case is distinguishable.
(16) In the result, the impugned judgment and decree is hereby set
aside. Plaintiff is not entitled to get relief sought for. The fact and
nature of the case, we deemed it fit to order refund of earnest
money to respondent Madanlal Navlani by appellant Vijay Kumar
Karande. Accordingly, the defendant is directed to return
Rs. 51,000 (Fifty One Thousand Only) to the plaintiff with interest
@ 6% per annum from the date of agreement i.e. 03/10/2009 till
payment. The appeal is allowed with that extent.
(17) A decree be drawn up accordingly.
-Sd/- -Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Chandrakant
