Chattisgarh High Court
Pappu @ A. Farishta vs T.S. Dewangan on 9 November, 2022
1
FA No.108 of 2018 & 112 of 2018
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal No. 108 of 2018
A. Farishta @ Pappu Farishta, S/o Late Gulam Ali Farishta, aged
about 46 years, R/o Q. No. -1, Ground floor-4, C-1, Ravi Nagar,
Housing Colony, behind EAC Colony, Raipur, Tahsil & District -
Raipur (C.G.)
---- Appellant/Plaintiff
Versus
T.S. Dewangan, S/o Late Sakharam Dewangan, Architect, aged
about 70 years, R/o Near Chhattisgarh College, Bairan Bazar,
Raipur, Tahsil & District Raipur (C.G.)
---- Respondent/defendant
First Appeal No. 112 of 2018
Pappu @ A. Farishta, S/o Late Gulam Ali Farishta, aged about 46
years, R/o Q.No.-1, Ground floor-4, C-1, Ravi Nagar, Housing
Colony, behind EAC Colony, Raipur, Tahsil & District - Raipur (C.G.)
---- Appellant/Defendant
Versus
T.S. Dewangan, S/o Late Sakharam Dewangan, Architect, aged
about 70 years, R/o Near Chhattisgarh College, Bairan Bazar,
Raipur, Tahsil & District Raipur (C.G.)
---- Respondent/Plaintiff.
For Appellant : Mr. Rajat Agrawal & Mr. Manharan,
Sahu, Advocate.
For Respondent : Mr. Prafull N. Bharat, Senior
Advocate assisted by Mr. Tanmay
Thomas, Advocate.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice N.K. Chandravanshi
Judgment on Board
2
FA No.108 of 2018 & 112 of 2018
Per Goutam Bhaduri, J.
9-11-2022
1. Both the appeals are being heard together, as the common
thread passes through the issue.
2. F.A.No.108/2018 is against the judgment and decree dated
12-1-2018 passed by the First Additional District Judge,
Raipur, in civil suit No.55-A/2011 (A. Farishta @ Pappu
Farishta v T.S. Dewangan) by which the suit filed for specific
performance of agreement dated 06.04.2007 was dismissed
whereas another appeal bearing F.A.No.112/2018 is against
the decree of eviction passed by the First Additional District
Judge, Raipur, in civil suit No. 10-A/2013 (T.S. Dewangan v
Pappu @ A. Farishta), which the appellant is facing for the
reasons, a suit for eviction was filed by the landlord wherein
the eviction decree is passed.
3. Plaintiff-A. Farishta @ Pappu Farishta filed a suit for specific
performance of an agreement dated 06.04.2007 wherein it
was alleged that he agreed to purchase four flats for a sale
consideration of Rs.32,61,000/- with the respondent/
defendant-T.S. Dewangan and out of total sale consideration,
according to plaintiff - A. Farishta @ Pappu, an amount of
Rs. 1,61,000/- was paid as an earnest money. Further, it was
stated that since there were three tenants, the subject
property consists of four flats and in one flat, the purchaser
was in occupation whereas in other three flats, the other
FA No.108 of 2018 & 112 of 2018
tenants were in possession. It was agreed to get them
vacated. it was stated that it was agreed that the said three
flats would be got vacated and thereafter the same would be
sold and also NOC (No Objection Certificate) was to be
obtained, as the property comprises in a Society. According to
the plaint allegations, as per the agreement dated 06.04.2007,
the sale deed was required to be executed within a period of
18 months.
4. Whereas another appeal bearing FA No.112/2018 is against
the eviction decree. In such case, the landlord - T.S.
Dewangan filed a suit for eviction against A. Farishta @
Pappu Farishta claiming that he has not paid the rent without
any lawful reason and suit house was required for his own,
under those eviction was claimed. So the suit was filed, apart
from the arrears of rent, on the ground of bona fide need and
nuisance. The said suit was decreed, therefore, the
subsequent appeal was preferred by tenant A. Farishta @
Pappu Farishta.
5. According to plaintiff/tenant (A. Farishta @ Pappu Farishta),
the agreement having been executed on 06.04.2007 and after
receipt of earnest money of Rs. 1,61,000/, he was served with
the eviction notice by the landlord on 22.01.2009,
consequently, he stopped the payment of rent on that ground.
When the suit for specific performance of the agreement
dated 6.4.2007 was filed, defendant-T.S. Dewangan
FA No.108 of 2018 & 112 of 2018
(landlord) came out with a plea that no agreement ever was
executed on 06.04.2007. It was further stated that neither any
earnest money was paid nor any further agreement was
entered to get the premises vacated from the tenants.
6. Plaintiff - A. Farishta (PW-1), who sought for specific
performance of the agreement, adduced his evidence, as also
examined two witnesses namely; Ashlam Khan (PW-2) &
Abdul Kadir (PW-3), whereas, respondent / defendant-T.S.
Dewangan examined himself only as DW-1 in the suit for
specific performance of the agreement.
7. The trial Court, after evaluating the facts, dismissed the suit for
specific performance of the agreement and also at the same
time decreed the suit for eviction. Hence, these appeals.
8. Learned counsel for the appellant/plaintiff - A. Farishta @
Pappu Farishta would submit that
▪ the trial Court failed to appreciate the statements of
plaintiffs' witnesses namely Ashlam Khan (PW-2) &
Abdul Kadir(PW-3) whereby the existence of the
agreement was proved;
▪ learned counsel referred to the aforesaid statements to
say that these witnesses have categorically deposed in
their statements that before them, agreement dated
06.04.2007 (Ex.P-1) was executed and they were party
to such primary evidence, consequently, there was no
FA No.108 of 2018 & 112 of 2018
occasion for the trial Court to disbelieve such
statements;
▪ after execution of the agreement on 06.04.2007, first
notice was served by the landlord on 22.01.2009, at that
time, the plaintiff could know the modus operendi and it
was replied to by letter/notice dated 17.02.2009
(Ex.P-2);
▪ once having agreed to sell the subject property to
plaintiff - A. Farishta @ Pappu Farishta, for obvious
reasons to get higher amount, respondent/landlord
backed-out from the contract; and
▪ the agreement dated 06.04.2007 having been
established by Ashlam Khan (PW-2) & Abdul Kadir
(PW-3), apart from A. Farishta @ Pappu Farishta
(PW-1), the burden shifted on the respondent/ defendant
to prove the non-existence of the agreement, therefore,
trial Court completely misdirected itself to give a finding
thereby the adverse order, which is subject of
challenge.
9. Per contra, learned Senior Counsel appearing for the
respondent/defendant T.S. Dewangan would submit that
statement of Ashlam Khan (PW-2) & Abdul Kadir (PW-3)
makes clear the ambiguity about existence of very
agreement;
FA No.108 of 2018 & 112 of 2018
though the reliance was tried to be placed on Ex.P-3,
which is return for the assessment year 2008-09, but as
per the agreement if the amount was paid on 6.4.2007,
the same should have been reflected in the return for
the assessment year 2007-08 and not in the return for
the assessment year 2008-09;
statements of Ashlam Khan (PW-2) & Abdul Kadir (PW-
3) never have reposed to the agreement dated
6.4.2007, which bears their signature, which are made
before them. Consequently, under such uncertainty, the
trial Court correctly held that agreement was not ever
executed at any point of time; and
despite service of notice for eviction, neither the
so-called purchaser/plaintiff paid the rent nor has
vacated the subject premises, therefore, the order
passed in both the suits are well merited, which do not
call for any interference.
10. We have heard learned counsel for the parties at length;
perused the record; and evidence available on
record.
11. The primary thrust of the plaintiff/appellant was on the
agreement dated 6.4.2007 (Ex.P-1), whereby it was stated
that four flats were agreed to be purchased for an amount of
Rs.31,61,000/- and earnest money of Rs.1,61,000/- was paid.
FA No.108 of 2018 & 112 of 2018
We referred to the original agreement in the file. The same
would show that it was on the plain paper and a special
adhesive stamp was attached meaning thereby, it was not on
the stamp.
12. Be that as it may, since it has been exhibited, therefore,
notwithstanding the rider placed under Section 36 of the
Indian Stamp Act, 1899, we would not like to deliberate on the
same having been exhibited at this moment. Since the
existence of the agreement was denied in the written
statement by defendant-T.S. Dewangan, as such, to evaluate
the statement of the witnesses, we went through the
depositions of A. Farishta @ Pappu Farishta (PW-1), Ashlam
Khan (PW-2) & Abdul Kadir (PW-3) & T.S. Dewangan (DW-1).
13. Plaintiff-A. Farishta @ Pappu Farishta, in his statement, has
mashed the agreement as (Ex.P-1) dated 6.4.2007 and notice
of reply given by him claiming eviction by landlord dated
17.2.2009 (Ex.P-2). According to the statement, after filing of
suit for eviction bearing Civil Suit No. 32-A/2009, the suit for
specific performance was filed. Ex. P/2 pertains to reply given
by plaintiff-A. Farishta @ Pappu Farishta pursuant to the
notice of eviction dated 22.1.2009 issued to him. According to
the plaintiff (PW-1), before agreement of sale was executed,
he was a tenant. As per cross-examination, he deposed that
he is in known to the fact that how the agreements for sale &
purchase are executed and volunteered that the agreement of
FA No.108 of 2018 & 112 of 2018
sale & purchase are executed in the stamp paper and the
same are not done as temporary i.e. 'कचचच ललखख पढच'. Referring
to Ex.P-1, he admits that it was a 'कचचच ललखख पढच' for
endorsement of the fact of payment of Rs.1,61,000/-. In the
deposition, he further stated that he has no knowledge of the
fact that whether he has shown such payment of
Rs.1,61,000/- in the return of the year 2004-05 and further
admits that from the month of April, 2007, he has not paid the
rent for the reason that he entered into agreement of
purchase.
14. Perusal of Agreement (Ex.P-1) would show that it contains
three pages. In the 3rd page, names of two witnesses i.e.
Ashlam Khan & Abdul Kadir have been shown. Aslam Khan
has been examined as PW-2. In examination-in-chief, he
stated that advance amount was paid to T.S. Dewangan,
defendant herein by A. Farishta @ Pappu Farishta before him.
In the cross-examination, it is stated that he is not aware of
the fact as to how much amount was paid as advance.
Further, he stated that the document, which was executed
before him was on stamp paper. Perusal of original
agreement (Ex.P/1) does not confirm the said fact, as it was
on the plain paper not on stamp paper. He further deposed
that the document, which was written/executed wherein bulk
of papers and it was written by pen, whereas, Ex.P-1 would
show that it is a typed paper.
FA No.108 of 2018 & 112 of 2018
15. Likewise, Abdul Kadir (PW-3) stated that when he went to a
place at Farishta Autodeal, at that time, he signed certain
papers and before whom other witness namely; Aslam Khan
also signed the said papers. He further stated that he has not
read those papers and only when he was asked to sign, he
signed on those places. Further statement is made that the
documents was made on the blue paper and he cannot recall
that whether it was typed on the stamp paper. He further
stated that it would be wrong to say that first page was written
in hand and thereafter there were bulk of papers. So
cumulative agreement of eviction with respect to execution of
the paper, the document (Ex.P-1) contradictory statements
have come to fore. Both the witnesses have not deposed the
fact in their statements that document (Ex.P-1) bears their
signature at pages as also in respect of signature of defendant
- T.S. Dewangan, it has also not been stated to be so.
Whereas statement of A. Farishta @ Pappu Farishta (PW-1)
would show that he categorically denied the fact on
agreement (Ex.P-1), from "A" to "A", he had signed such
agreement to prove his signature.
16. So reading of the statements of A. Farishta @ Pappu Farishta
(PW-1), Aslam Khan (PW-2) along with T.S. Dewangan
(DW-1), it has been stated that certain papers were signed.
Aslam Khan (PW-2) has stated that it was on the stamp paper.
If such deposition is read along with the statement of A.
FA No.108 of 2018 & 112 of 2018
Farishta @ Pappu Farishta (PW-1), wherein he stated that it
was 'कचचच ललखख पढच' and according to his knowledge,
agreements of purchase are normally done or executed on the
stamp paper. Therefore, it raises a doubt about existence of
agreement (Ex P-1). Further, doubt is corroborated by the
statement of Abdul Kadir (PW-3), who contradicts the
statements of Ashlam Khan (PW-2) and witnesses to the
agreement (Ex.P-1) wherein he stated that it would be wrong
to say that there was bulk papers along with first page, which
were written in hand.
17. If the existence of any agreement is doubtful, the question
looms large as to what agreement they were referring to. Was
there any other agreement existed, if such doubts are created
about the very existence of the agreement and the witnesses
of the plaintiff themselves have failed to prove by sufficient
evidence about execution and existence of agreement,
specific performance of the agreement cannot be ordered on
presumption, unless it is proved beyond doubt about
existence of the agreement. When there was specific denial
existed on the face of it about the signature of so-called seller
T.S. Dewangan, the said signature could have been compared
and proved by any other corroborative evidence. Instead, the
plaintiff - A. Farishta @ Pappu Farishta (PW-1) choose to
continue with the evidence on basis of Ashlam Khan (PW-2) &
Abdul Kadir (PW-3) for adjudication of the case. It was
FA No.108 of 2018 & 112 of 2018
admitted by the witness that he has not paid the rent amount
from April, 2007. On the contrary, in the evidence of T.S.
Dewangan, he has stated that he wants to get the premises
vacated because of nuisance, non-payment of arrears of rent
and bona fide need.
18. The respondent / landlord- T.S. Dewangan had also filed a suit
for ejectment on the ground that despite service of notice to
the tenant to deposit arrears of rent apart from nuisance and
need, neither the tenant - Farishta has deposited the arrears
of rent nor has vacated the premises. The landlord stated that
the house was given on rent in the month of December 2004
at the rate of Rs.2900/- per month and thereafter in the month
of April, 2007 it was enhanced to Rs.3000/- per month. He
further stated that the appellant has given part of the flat to
some of his known person on rent of Rs.1500/- per month, but
the rent has not been paid for that too. Despite repeated
requests and notice it was not paid, therefore, he served a
notice (Ex. P-1), which was said to have been received vide
Ex. P-2 & P-3. The notices were exchanged. In respect of the
suit property the tenant Farishta entered into purchase
agreement and paid an amount of Rs.1,61,000/- as earnest
money.
19. In the earlier foregoing paragraphs, the observation has been
made to the defence that the agreement entered in between
the landlord and tenant for purchase of the suit property was
FA No.108 of 2018 & 112 of 2018
found to be non-existing. There is nothing on evidence to
show that an amount of Rs.1,61,000/- was paid as earnest
money which was required to be adjusted towards the rent.
When the very existence of agreement has been negated, the
subsequent defence that the rent was not paid because of the
fact earnest money was not paid stands automatically failed.
20. The landlord has further stated that he do not have any other
property for his own stay at Raipur and needs the
accommodation for his own use. Such statement also stands
unrebutted only because of the fact it has been stated that the
landlord was staying with his son, it cannot be presumed that
the property is not required by him. Further there is no
evidence on record that the arrears of rent has ever been paid
despite notice. Consequently, the statement of the landlord
appears to have rightly been proved wherein finding has been
given by the learned Court below.
21. In view of existing evidence, we are of the view that the
findings recorded by trial Court do not call for any interference
and accordingly we decline to interfere with such finding of
fact, which apparently appears to be on the sound assumption
of the evidence.
22. Accordingly, both the appeals sans substratum liable to be and
are hereby dismissed, leaving the parties to bear their own
cost(s).
FA No.108 of 2018 & 112 of 2018
23. Decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
Amit/Gowri
