[Cites 12, Cited by 0]

Chattisgarh High Court

Satyadeo Prasad Sinha vs Prabhunath Singh on 25 March, 2026

SUNITA
GOSWAMI

Digitally signed
by SUNITA
GOSWAMI
Date:
2026.03.25
16:42:03 +0530
2026:CGHC:14172-DB
AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

FA No. 676 of 2018
Reserved on 10/03/2026
Pronounced on 25/03/2026
Satyadeo Prasad Sinha S/o Shri Parmeshwar Prasad Sinha, Aged About 62
Years, Occupation Proprietor Swapnil Builders, R/o House No. B-44, Surya
Apartment, Junvani, Tahsil And District Durg(CG) ...........Defendant.

... Appellant
versus

1 - Prabhunath Singh S/o Ramnaresh Singh, Aged About 45 Years, R/o Plot
No.4, Pushpaknagar Junvani, Bhilai, Tahsil And District Durg,
(CG) .........Plaintiff.

2 - State of Chhattisgarh,Through Collector, Durg, Tahsil And District Durg
(CG)

... Respondents
For Appellant : Mr. Rajeev Shrivastava, learned Senior Advocate
appears along with Mr. Prateek Sinha, Ms. Kajal
Chandra, Mr. Kaif Ali Rizvi, Advocates and the
Appellant- Satyadeo Prasad Sinha.
For Respondent No.1 : Mr. B.P. Singh, Advocate appears along with Mr.
Vidya Bhushan Soni, Advocate
For Respondent No.2 : Mr. Dilman Rati Minj, Dy. Advocate General
appears along with Ms. K. Radhika, P.L.

DB: Hon'ble Shri Justice Sanjay S. Agrawal &
Hon'ble Shri Justice Amitendra Kishore Prasad
C A V Judgment

Per Sanjay S. Agrawal, J.

1) This appeal has been preferred by the appellant/defendant No.1-

Satyadeo Prasad Sinha under Section 96 of the Code of Civil

Procedure, 1908, questioning the legality and propriety of the judgment

and decree dated 24.10.2018 passed by the Sixth Additional District

Judge, Durg, District Durg (C.G.) in Civil Suit No.95-A/2014, whereby, a

decree for specific performance of contract based upon an oral

agreement to sale was granted to the plaintiff- Prabhunath Singh, while

declaring his interest over the land in question as well. The parties shall

be referred hereinafter as per their description before the concerned

trial Court.

2) The facts, which are essential for adjudication of this appeal are, that

the plaintiff- Prabhunath Singh, instituted a suit claiming specific

performance of contract based upon an oral agreement to sale and,

also for the declaration to the effect that his interests are involved in the

suit land, with a further relief of issuance of permanent injunction

restraining the defendant No.1- Satyadeo Prasad Sinha from creating

any 3rd party interest over the land in question.

3) According to the plaintiff, the land in question, bearing Khasra Nos.

86/2, 86/3, 86/4 and 86/5 admeasuring 0.280 hectare, 0.270 hectare,

0.270 hectare and 0.270 hectare, respectively, total admeasuring 1.090

hectare, situated at village Jamul, Tahsil and District Durg were

purchased by him and defendant No.1 after collecting a sum of

Rs.1,15,21,000/- (Rupees One Crore Fifteen Lacs Twenty One

Thousand) from various persons and deposited the same in the Bank

Account of defendant No.1, while assuring the said persons to provide

them a constructed house over it. It is pleaded by the plaintiff that he

was in close relations with defendant No.1 as they are involved in

building construction work and since the Colonizer Licence was not

available with him, therefore, after collecting the alleged amount from

different persons and that by depositing the same in the Bank Account

of defendant No.1, the registered deed of sales for purchasing the

alleged suit lands were got registered in his name though, he has equal

interest over it. It is pleaded further by the plaintiff that since the

defendant No.1 was busy with some other project, therefore, an oral

agreement was executed between them on 01.09.2012 in presence of

Rahul Siyal and Krishna Kumar Vanwey, according to which, the

registered deed of sale was to be executed for a consideration of

Rs.40,00,000/- (Rupees Forty Lacs) either in his name, or in the name

of the person of his choice and, he paid a sum of Rs.16,00,000/-

(Rupees Sixteen Lacs) to him in pursuance thereof, on different dates.

Further of his claim is that while in possession over the alleged suit

land, he incurred huge amount for the construction of officer staff

quarters, servant quarters, boundary wall and gate etc., but owing to

escalation in the price of the suit land, the defendant No.1 refused to

execute the registered deed of sale in pursuance to the alleged oral

agreement and instead, lodged a false report against him on

22.06.2014 before the Police Station, Jamul with an allegation that he

has raised the alleged construction work while encroaching the same,

which, therefore, compelled him to issue a legal notice on 19.08.2014

for execution of the registered deed of sales in his favour, but neither

the reply was given by him, nor has obeyed the alleged oral

agreement, leading to the institution of the suit in the instant nature,

instituted on 17.11.2014 seeking the following reliefs :-

(a) that the defendant No.1 be directed to execute a

registered deed of sale pertaining to the land in question

in his favour ;

(b) that defendant No.1 be restrained from creating

any 3rd party interest over the land in question and also

for the interference of his peaceful possession over the

land in question ; and

(c) that his interest over the land in question be

declared as well and any other relief which the Court

may deem fit.

4) In reply, the defendant No.1 has denied specifically the execution of the

alleged oral agreement to sale or has received any amount of

Rs.16,00,000/- from the plaintiff in pursuance thereof. According to

him, the revenue papers are recorded in his name after purchasing the

alleged suit land under different registered deeds of sales and the

plaintiff was neither in possession, nor has raised any construction over

it. It is contested further on the ground that since the plaintiff has

borrowed a sum of Rs.30,00,000/- (Rupees Thirty Lacs) from him for

his business purpose, therefore, the alleged amount of Rs.16,00,000/-,

out of it, was refunded on his demand on different dates and when he

demanded rest of the loan amount in the month of July, 2014, the suit

in the instant nature has been instituted in order to escape himself from

the alleged liability. It is contested further on the ground that the claim

as made seeking interest over the land in question is not maintainable

by virtue of Section 4 of the Prohibition of Benami Property

Transactions Act, 1988 (hereinafter referred to as 'the Act, 1988').

5) The trial Court, after considering the evidence led by the parties,

particularly the statements of Krishna Kumar Vanwey (PW-2) and

Rahul Siyal (PW-3), coupled with the fact that the defendant No.1 has

failed to establish the fact that he received the alleged amount of

Rs.16,00,000/- out of the alleged loan amount of Rs.30,00,000/-

advanced by him to the plaintiff, held that an oral agreement to sale

dated 01.09.2012 was executed between them for alienation of the

alleged suit land for a consideration of Rs.40,00,000/- upon receiving

an earnest amount of Rs.16,00,000/- by defendant No.1 and, held

further that since the land in question was purchased by the plaintiff

and defendant No.1 after collecting the amount from different persons

and as the sale consideration was not paid by them, the suit, therefore,

cannot be held to be barred under Section 4 of the Act, 1988. In

consequence, the plaintiff has been held to be entitled for a decree for

specific performance of contract based upon the alleged oral

agreement to sale, dated 01.09.2012 while declaring his interest over

the land in question as well and, that by restraining the defendant No.1

from interfering in his peaceful possession. Being aggrieved, the instant

appeal has been preferred.

6) Learned counsel appearing for the appellant/defendant No.1 submits

that the finding recorded by the trial Court holding that an oral

agreement to sale was executed between the parties on 01.09.2012

and, thereby, granting a decree for specific performance of contract, is

apparently contrary to the materials available on record. While inviting

attention towards the statements of Krishna Kumar Vanwey (PW-2) and

Rahul Siyal (PW-3) submits that since both have failed to state that any

oral agreement to sale was executed on the said date, the trial Court

ought not to have held that any agreement to sale, as such, was ever

made orally between them. It is contended further that in absence of

any cogent and reliable evidence produced by the plaintiff for the

establishment of the alleged oral agreement to sale, coupled with his

failure to establish the terms and conditions for the execution of the

sale in pursuance to the alleged oral agreement, a decree for specific

performance of contract ought not to have been granted. In any case,

while referring to the proceedings drawn against the plaintiff pertaining

to dishonor of the cheques, issued by him, contended further that even

he was not possessing the sufficient fund or could be held to be ready

and willing to perform his part of the contract. While inviting attention

towards the definition of "Benami Transaction" provided under Section

2(9) of the Act, 1988, it is contended further that since the sale

consideration, according to the plaintiff, was paid by others, the claim

as made by him with regard to the declaration of his interest over the

alleged suit land ought to have been held to be barred by jurisdiction

under Section 4 of the said Act, 1988. In support, he placed his

reliance upon the decision rendered by the Supreme Court in the

matter of V.R. Sudhakara Rao and Others Vs. T.V. Kameswari,

reported in (2007) 6 SCC 650.

7) On the other hand, learned counsel appearing for the respondent

No.1/plaintiff submits that the trial Court, while placing reliance upon

the testimonies of Krishna Kumar Vanwey (PW-2) and Rahul Siyal

(PW-3), has not committed any illegality in granting a decree for

specific performance of contract upon holding that an oral agreement to

sale was executed between the parties on 01.09.2012 for execution of

the registered deed of sale after receiving an earnest amount of

Rs.16,00,000/-. It is contended further that since the suit land was

purchased in the name of defendant No.1 after collecting the amount of

Rs.1,15,21,000/- from different persons and as the sale consideration

was neither paid by the plaintiff, nor by the defendant No.1, the trial

Court has, therefore, not erred in holding that the alleged transaction

would not fall within the definition of "Benami Transaction" while

refusing to hold the suit to be barred by jurisdiction under Section 4 of

the Act, 1988 and, that by holding plaintiff's interest over the suit land.

In support, he placed his reliance upon the decision rendered by the

Supreme Court in the matter of K. Nanjappa (Dead) By Legal

Representatives Vs. R.A. Hameed Alias Ameersab (Dead) By

Legal Representatives And Another, reported in (2016) 1 SCC 762,

A. Kanthamani Vs. Nasreen Ahmed, (2017) 4 SCC 654, Zarina

Siddiqui Vs. A. Ramalingam Alias R. Amarnathan, (2015) 1 SCC

705, Silvey And Others Vs. Arun Varghese And Another, (2008) 11

SCC 45, Bhagchand Jain Vs. Parwati Sharma and Another, 2022

SCC OnLine (Chh) 1693.

8) We have heard learned counsel appearing for the parties and perused

the entire record.

9) The main questions, which arise for determination in this appeal are :-

(i) Whether an oral agreement to sale was executed

between the plaintiff and the defendant No.1 on

01.09.2012 for the execution of the land in question

either in the name of the plaintiff or in the name of the

persons of his choice and/or, whether the plaintiff has

sufficient fund and was ready and willing to perform his

part of the contract ?

(ii)) Whether suit as framed and instituted claiming

interest over the land in question is hit by the provision

prescribed under Section 4 of the Prohibition of Benami

Property Transactions Act, 1988 ?

10) Before proceeding with the matter, it is necessary to consider the

applications (I.A.No.8/2026 and I.A.No.9/2026), both made by the

plaintiff on 13.02.2026, whereby, the plaintiff is seeking for the deletion

of manipulation made at the fag end of plaint para 6, wherein, it has

been mentioned that "plaintiff has prescribed his right by way of

adverse possession", and also for holding an enquiry in this regard

under Section 340/195 of Cr.P.C.

11) According to the counsel appearing for the plaintiff, he came to know

for the first time regarding the alleged manipulation during the

pendency of this appeal, which compelled him for filing of an

application, marked as I.A.No.4/2023 on 28.02.2023, seeking enquiry

about the manipulation made at para 6 of the plaint. After considering

the said application (I.A.No.4/2023), this Court vide order dated

18.03.2024 has observed and directed as under :-

This is an application filed by the respondent No.1 seeking enquiry about manipulation made in para 6 of the plaint.

The aforesaid application has been filed seeking suitable direction in the backdrop of the fact that at the end of para 6 of the plaint while the suit was being contested the words "वादी विरोधी आधिपत्य के आधार पर भूस्वामी हो गया" were not written and in this regard the affidavits of the plaintiff Shri Prabhunath Singh and his counsel before the trial Court namely; Shri B.L. Deshmukh, Advocate have also been filed. In the said affidavits, both the affidavees categorically stated that in the original plaint those lines were not written. It has been further stated that the issue was also not framed in this context and neither it was replied in the written statement, which would show that interpolation has been made.

Serious exception has been taken by the learned senior counsel for the appellant and would submit that the contents of the original plaint filed before the learned Sixth Additional District Judge, Durg, contains the aforesaid words at para 3 of the plaint.

Since the suit was decreed for specific performance and if certain averments have been made, as a pleading by the plaintiff it may have an effect on the merits.

As the serious allegation of interpolation has been made, it is directed that firstly the enquiry should be made by the Registrar (Judicial) of this Court and thereafter, the concerned trial Court. If need be, expert opinion may also be obtained".

12) In compliance of the aforesaid direction, the Registrar(Judicial)

enquired into the matter and submitted the report. The relevant portion

of it as reveals from the order sheet dated 07.05.2025, reads as

under :-

"In view of above facts and circumstances of the case and perusing the material available on record, it is appropriate that to appoint a handwriting expert, who can find out that who wrote those words at the end of para 6 of the original plaint and also find out that whether the handwritten words ink & writing style is of plaintiff or his counsel or any other person. Therefore, it would be appropriate to send the matter with case files to the concerned trial Court directing to submit thorough report in the matter with exclusive findings."

13) In view of the aforesaid report, the original record of the suit was

directed to be sent to the concerned trial Court by this Court vide order

dated 07.05.2025, with a direction for holding an enquiry and submit its

report within a period of three months from the date of receipt of the

records.

14) It appears that as per the request of the trial Court, time for holding an

enquiry for the said purpose was extended from time to time and, it

appears further that for holding an enquiry for the said purpose, the

State Examiner, namely, N.K. Sikkewal was appointed, who vide his

opinion dated 30.10.2025 has, however, failed to give any definite

opinion to this effect. The opinion of him is in the verbatim reads as

under :-

OPINION

No./QD/CX 172/25 Date 30/10/25

[विषय- माननीय उच्च न्यायालय छ.ग. बिलासपुर के आदेशानुसार FA NO. 676/2018, सत्यदेव प्रसाद सिन्हा विरूद्ध प्रभुनाथ सिंग तथा मूल प्रकरण व्यवहार वाद क. 95 अ/2014 प्रभुनाथ सिंग विरुद्ध सत्यदेव प्रसाद सिन्हा एवं अन्य एक, में मूल वाद कं डिका 6 में उल्लेखित "वादी विरोधी आधिपत्य के आधार पर भू -स्वामी हो गया" का जांच करने के पश्चात रिपोर्ट पेश करने के संबंध में।]

The documents of this case stamped and marked Q1,Q2 and S-1 to S-4, K-1 to K-3, A-1 to A-4, D-1 to D-4, M-1 to M- 3, B-1 to B-4, P-1 to P-3, have been carefully and thoroughly examined in all aspect of handwriting identification and detection of forgery with the help of necessary scientific aids available in the state laboratory at Raipur C.G.

01. When the red enclosed questioned writings stamped and marked Q1 (On page number 3 serial number ( कं डिका 6) and Q2 (On page number 3 serial number ( कं डिका 6) have been carefully examined and compared thoroughly it is found that these writings are over written, as well as physical eraser have been applied over the writing portion, resulting the paper fibers are disturbed therefore line quality and execution of strokes can not be studied properly, after above observation it is clearly established that these writings stamped and marked Ql and Q2 are not fit for comparison.

Sd/-

30/10/25 (N.K.SIKKEWAL) State Examine r of QD Govt. Of (C.G.) Raipur

15) Perusal of the record would reveal further that a "Joint committee" of

two experts, viz, from Hyderabad Forensic Handwriting, as well as,

Mumbai Institute of Forensic Science, was constituted in this aspect,

when the said State Examiner has failed to give the opinion, but they

have also failed to give its definite opinion. A "Confidential Inquiry

Report" of the said Joint committee (un-dated) in its verbatim reads as

under :-

Confidential Inquiry report

Report:- In FA/18 Satydeo Prasad sinha vs Prabhunath singh

Sir,

Regarding incorporation of Line वादी विरोधी आधिपत्य के आधार पर भूस्वामी हो गया।

A Joint committee of two expert viz from Hyderabad forensenic handwriting as well as Mumbai Institute of forensic science has given report as under

1. Affidavit writing of Counsel for plaintiff / respondent Counsel for appellant/ defendant affidavit writing as well as from the original plaint plaintiff writing and defendant written statement was compared report was as under :-

Reasons assigned

None of the writing of both the advocate's affidavit matched with the writing of Line written वादी विरोधी आधिपत्य के आधार पर भूस्वामी हो गया।

Scientific reason:-

All the words in the line वादी विरोधी आधिपत्य......... गया has been written twice or sometimes thrice due to interlineation and pressure of pen again and again, originality has been lost and it has been written by two three different persons at different times pen stroke is totally different.

Reference questioned documents Harrison

Dent mark appear behind the paper, originality of writer is lost due to multiple interlineation (अंतर्संबंध) so by no stretch of imagination it cannot that who has done it. time period dates to 2022.

So as per joint committee expert report it is impossible to say that who has incorporated said line.

16) The State Examiner and the Joint Committee of two experts have, thus,

failed to give any definite opinion as to whether any manipulation as

such was made at the fag end of the plaint para 6 or not. Be that as it

may, it is to be seen from perusal of the averments made in the plaint

as well as the written statement of defendant No.1/appellant, vis-a-vis,

the issues framed by the trial Court, as also from the grounds taken in

the memo of instant appeal, the alleged fact regarding accrual of

plaintiff's title by way of adverse possession, was not taken. It, thus,

prima facie appears that the alleged plea, shown to be at the fag end of

plaint para 6, was not there, else, not only the same would have been

controverted by the defendant No.1 in his written statement, the issues

to this effect must have been framed by the trial Court and even at the

time of preferring this appeal, a specific ground must have been taken.

17) In view of such circumstances, the application (I.A.No.9/2026) seeking

deletion of the said para mentioned at the fag end of para 6 is allowed

and, the plaintiff is permitted to delete the said portion, i.e. " वादी विरोधी

आधिपत्य के आधार पर भूस्वामी हो गया"। However, considering the facts

and circumstances of the case and that by considering the enquiry

made to this effect, as observed herein-above, and in view of the

language used in Section 340 Cr.P.C., we are, therefore, not inclined to

make a complaint regarding commission of an offence as alleged by

the plaintiff, in the light of the principles laid down by the Supreme

Court in the matter of Iqbal Singh Marwah and Another Vs.

Meenakshi Marwah and Another, reported in (2005) 4 SCC 370,

wherein, at para 23, it was held as under :-

"23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b)".

18) In view of the aforesaid principles, no fruitful purpose would be served

for making a complaint in this regard in view of the aforesaid reports,

submitted by the State Examiner as well as by the Joint Committee

report, coupled with the fact that neither the alleged portion was taken

into consideration by the trial Court, nor the plaintiff has been non-

suited for it. The said application (I.A.No.8/2026) is, thus, rejected.

19) Now, the matter is required to be considered on merits while ignoring

the aforesaid plea made at the fag end of plaint para- 6.

20) From perusal of the record, it appears that the part of the land bearing

Khasra No.86 admeasuring 0.280 hectare situated at village Jamul,

Tahsil and District Durg, was purchased in the name of defendant No.1

under the registered deed of sale dated 18.08.2011 (Ex.P-101), said to

have been executed by one Jagannath Yadav through his Power of

Attorney Holder for a consideration of Rs.5,95,000/- (Rupees Five Lacs

Ninety Five Thousand) and, likewise by virtue of three registered deed

of sales (Ex.P-100, Ex.P-102 and Ex.P-104), all executed on

25.10.2011, said Jagannath Yadav has sold the part of the said Khasra

number, i.e. Khasra No.86, admeasuring 0.280 hectare, 0.270 hectare,

0.270 hectare and 0.270 hectare, respectively, in the name of

defendant No.1, which were, thereupon, re-numbered as "Khasra Nos.

86/2, 86/3, 86/4 and 86/5" as described detailed in plaint para- 2.

21) According to the plaintiff, a total sum of Rs.1,15,21,000/- was collected

from different persons in order to provide them a constructed house

and, out of which, the sale consideration was paid to said Jagannath

Yadav through his Power of Attorney Holders for purchasing the land in

question, but, in order to establish the said fact, none of those persons

have come forward in order to establish the said fact that the sale

consideration was paid by them. Since all the said sale deeds were

registered, therefore, a strong presumption would arise that it was

purchased by defendant No.1, unless and until it is rebutted by the

plaintiff by way of cogent and reliable evidence, who, however, failed to

do so.

22) It is to be seen further that although, it was pleaded by the plaintiff that

he was in possession over the suit land and has incurred huge amount

for the construction of officer staff center, servant quarters, boundary

wall etc., but the revenue papers, including its 'Kaifiyat column', vis-a-

vis, the recitals made in the alleged registered deed of sales would,

however, showing the possession of defendant No.1 over the alleged

suit land. Therefore, merely on his bald oral statement, it cannot be

said that he was in possession over the suit land, or has incurred huge

amount for raising certain constructions over it, as alleged by him.

23) Be that as it may, an oral agreement to sale was alleged to have been

executed between the plaintiff and defendant No.1 on 01.09.2012, as

revealed from the averments made in the plaint, in presence of two

witnesses, namely, Krishna Kumar Vanwey and Rahul Siyal and,

according to which, the registered deed of sale was to be executed for

a consideration of Rs.40,00,000/- either in the name of the plaintiff, or

in the name of the persons of his choice, upon receiving an earnest

amount of Rs.16,00,000/- by defendant No.1 on different dates

commencing with effect from14.08.2013 upto 27.11.2013, as revealed

from plaint para- 7.

24) What is, therefore, revealed from the plaint that an oral agreement to

sale was alleged to have been made on 01.09.2012 and based upon

which, the plaintiff is seeking a decree for specific performance of

contract of sale of the immovable property. It is true that a decree for

specific performance of contract could be granted on the basis of an

oral agreement to sale as held in the matter of K. Nanjappa (Dead) by

Leal Representatives (supra), as relied upon by Mr. B.P. Singh,

learned counsel appearing for the respondent No.1/plaintiff, but it has

been held in the said matter that if the plaintiff is seeking a decree for

specific performance of contract based upon an oral agreement to sale,

then a heavy burden would lie upon him to establish the said fact,

including the vital terms and conditions of it. The relevant observations

made to this effect at paragraphs 21 and 22 read as under :-

"21. There is no dispute that even a decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in a case observed, while deciding a suit for specific performance, that an oral contract is valid, binding

and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by this Court in Kollipara Sriramulu v. T. Aswatha Narayana (AIR 1968 SC 1028) and held that an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties.

22. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immovable property. Whether there was such a concluded 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 plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties".

25) In view of the aforesaid principles laid down by the Supreme Court, it

is, thus, to be seen whether the plaintiff has succeeded to prove the

alleged oral agreement to sale, made on 01.09.2012, and also of its

vital terms and conditions, so as to hold that the plaintiff would be

entitled to get a decree for specific performance of contract based upon

such an oral agreement.

26) However, a bare perusal of the averments made in the plaint, it

appears that no amount towards earnest money was paid to the

defendant No.1 on the said day and instead, a sum of Rs.2,00,000/-

(Rupees Two Lacs) was paid for the first time only on 14.08.2013, i.e.

some part only and, that too much after passing of the considerable

period of more than 11 months from the date of the alleged oral

agreement to sale. That apart, the alleged oral agreement to sale was

alleged to have been made in presence of said Krishna Kumar

Vanwey (PW-2) and Rahul Siyal (PW-3), but a bare perusal of their

testimonies, it is difficult to hold that it was made orally on 01.09.2012,

as none of them have deposed that the alleged agreement was made

orally on 01.09.2012. Contrarily, as revealed from the averments made

in the plaint by way of amendment, it was a written agreement made in

this regard on 01.09.2012. In view of such contradictory pleas taken by

the plaintiff, it cannot be said that any oral agreement to sale as such

was made on 01.09.2012. Moreover, it has not been stated even in a

legal notice (Ex.P-1) dated 19.08.2014, issued by the plaintiff that any

oral agreement as such was made on 01.09.2012.

27) What is, therefore, reflected from the averments made in the plaint that

though, the agreement to sale was alleged to have been made orally

on 01.09.2012 in presence of two witnesses, namely, Krishna Kumar

Vanwey (PW-2) and Rahul Siyal (PW-3), but, as observed herein-

above, none of them have, however, stated that it was made orally in

their presence. Moreover, the plaintiff has failed further to prove its

terms and conditions, nor the said fact was even found to be

established from the alleged notice (Ex.P-1) issued by him on

19.08.2014, so as to hold that any oral agreement to sale as such was

made on 01.09.2012, in the light of the principles laid down in the

above-referred matter.

28) Besides, it is the settled principle of law that in a suit for specific

performance of contract, the evidence and proof of the terms and

conditions of the alleged agreement must be absolutely clear and

certain, as held by the Supreme Court in the matter of V.R. Sudhakara

Rao And Others Vs. T.V. Kameswari, reported in (2007) 6 SCC 650,

as relied upon by learned counsel appearing for the

appellant/defendant No.1, where at paragraph 16, it was held as

under :-

"16. The High Court has rightly concluded that there is no clear proof relating to the other terms of condition. The relief of specific performance is discretionary relief and except the oral evidence, there is no clear evidence to prove several of the essential terms which have been taken note of by the High Court. The High Court, on analysing the evidence, has come to hold that except Exhibit B-1 and the oral evidence of DW 1 and DW 2, there is no other clear proof relating to the other terms and conditions of the contract which can be termed as essential conditions like delivery of possession and also the obtaining of permission from the Urban Land Ceiling Authorities and therefore, it cannot be said that all the essential terms and conditions of a well-concluded contract had been established in the case at hand".

29) Applying the aforesaid principles to the case in hand, it cannot be held

that any oral agreement as such was ever made between them on

01.09.2012, merely based upon his bald statement or the plaintiff could

be held to be entitled for a decree for specific performance of contract

based upon such an agreement.

30) Now, insofar as the principles laid down by the Supreme Court in the

matter of A. Kanthamani (supra), as relied upon by the counsel

appearing for the respondent No.1/plaintiff, is concerned, the same is,

however, noted to be of no use as in the said matter, readiness and

willingness of the plaintiff was considered, whereas, in the instant

matter, as found herein-above, the plaintiff has even failed to prove the

existence of an oral agreement to sale, based upon which, his claim

was made. Therefore, in absence of the proof of the alleged oral

agreement, no fruitful purpose would be served to examine his

readiness and willingness.

31) Insofar as the principles laid down by the Supreme Court in the matter

of Zarina Siddiqui (supra), as relied upon by the counsel appearing for

the respondent No.1/plaintiff, is concerned, the same is also noted to

be distinguishable from the facts involved herein as in the said matter,

an agreement to sale executed by the Power of Attorney Holder of

defendant No.1 in favour of the plaintiff, was found to be proved, but

the defendants in their written statement had taken a false plea saying

that the alleged Power of Attorney Holder was authorized only for

looking after and managing the suit property. Since, a false plea was

taken, therefore, in that factual scenario, it was held and declined the

defendants for exercising the discretionary power in their favour by

refusing to grant a decree for specific performance of contract in favour

of the plaintiff. The said principle has, thus, been laid down entirely on

different footings and no reliance, therefore, could be placed upon it.

Likewise, the principles laid down in the matter of Silvey And Others

(supra), is also of no use being laid down on different footings and, the

principles laid down by this Court in the matter of Bhagchand Jain

(supra) while placing reliance upon the said decision, i.e. Silvey And

Others Vs. Arun Varghese And Another [(2008) 11 SCC 45], is also

of no use.

32) It is to be seen further that the alleged registered deed of sales (Ex.P-

101, Ex. P-100, Ex. P-102 and Ex.P-104) were executed in the name of

defendant No.1 and according to the plaintiff, the entire sale

consideration was paid after collecting the same from different persons.

It, thus, appears that the alleged sale deeds were executed "Benami" in

the name of defendant No.1, however, such a plea, though not found to

be established, as observed herein-above, cannot even be taken by

the plaintiff in order to establish his interest over the land in question in

the light of the provisions prescribed under Section 4 of the Act, 1988.

Yet the trial Court has held his interest over it, which is unknown to the

law and such a decree, thus, liable to be quashed.

33) Consequently, the appeal is allowed and the impugned judgment and

decree, dated 24.10.2018 passed by the Sixth Additional District

Judge, Durg, District Durg (C.G.) in Civil Suit No.95-A/2014 is hereby

set-aside.

No order as to cost(s).

A decree be drawn accordingly.
                      Sd/-                                           Sd/-
               (Sanjay S. Agrawal)                        (Amitendra Kishore Prasad)
                     Judge                                          Judge

sunita
 