Bihari Lal vs Balram
2021 Latest Caselaw 4590 MP

                                    1




       HIGH COURT OF MADHYA PRADESH AT JABALPUR
Single Bench : Hon'ble Smt. Justice Anjuli Palo, Judge

                            S.A. No.601/2021

                   Sant Kumar Rai @ Bihari Lal
                                    Vs.
                            Balram Namdeo
------------------------------------------------------------------------
Ms. C.V. Rao, counsel for the appellants.
------------------------------------------------------------------------
                          S.A. No.665/2021

                       Bihari Lal and another
                                    Vs.
                         Balram and others
------------------------------------------------------------------------
Ms. C.V. Rao, counsel for the appellants.
------------------------------------------------------------------------
                              JUDGMENT

(24/08/2021)

Both the appeals have been heard together and are being

decided by this common judgment.

2. These appeals have been preferred by the appellants

against the common judgment and decree dated 28.01.2021 passed

by Vth Additional District Judge, Katni in R.C.A. Nos.65/2018 and

64/2018 affirming the judgment and decree dated 15.03.2018 passed

by Second Civil Judge Class II, Katni in RCS Nos.2500185A/2016 and

2500235A/2016.

3. In Civil Suit No.2500185A/2016, the respondents/ plaintiffs

(Balram and another) have claimed possession, declaration,

permanent and mandatory injunction of suit property bearing Khasra

No.513, admeasuring 0.26 hectares situated at Village Simrakalan PH

No.26, Tahsil Reethi, District Katni. The respondents/plaintiffs pleaded

that they are the legal heirs of deceased-Phaguniya Bai and co-owners

of the suit property, which was devolved by them, after the death of

their parents. The respondent (Balram) further pleaded that, the

appellant/defendant No.1, son of appellant/defendant No.2, started

residing in the 'pacca' house. Thus, cause of action arose on

09.06.2016, when he dug the foundation and started construction

over the suit land. The said suit was partly allowed and the appellants

(defendants therein) were directed to remove the constructed house

and fencing over the suit property and also to deliver the vacant

possession thereof to the plaintiffs.

4. The admitted facts are that the respondent (Balram) had

taken a loan from the appellants, but the appellants are alleging the

same to be a transaction and it is a consideration for agreement to

sale in respect of part of suit property admeasuring area 0.07 hectare.

It is also not in dispute that the suit property belongs to the

respondents.

5. It is also not disputed that a ' pacca' house and fencing

have been constructed on the suit property by the appellants (Sant

Kumar), which has been shown with letters A, B, C & D in the suit

map. For that, respondent filed a police complaint, but no action has

been taken by the police in that regard. There is a signature of the

respondent on the agreement to sale dated 24.06.2015.

6. In Civil Suit No.2500235A/2016, appellants/plaintiffs (Sant

Kumar Rai @ Bihari Lal and another) have claimed specific

performance of agreement to sale dated 24.06.2015 and grant of

permanent injunction of the same suit property bearing Khasra

No.513, admeasuring 0.26 hectares, situated at Village Simrakalan PH

No.26, Tahsil Reethi, District Katni. The said suit was dismissed by the

trial Court.

7. The appellant has not disputed the ownership of the

respondents over the suit property, but in written statement he

claimed that he was in possession of the suit property with the oral

consent of respondent/plaintiff No.1 (Balram), as an agreement to sale

was executed on 24.06.2015. It was submitted that 10-12 years ago,

the respondents had taken loan of Rs.12,000/- from the appellant

No.1 and when on 24.6.2015 he requested for registration of the sale

deed in respect of the suit property, they have not executed the same

on the basis of pendency of partition proceedings between him and

other co-owners. Since there was agreement to sale which was

executed between them on 24.06.2015, therefore, the Police have not

taken any action on the complaint filed by the respondents. In this

case, appellant No.2 is unnecessary party. No cause of action arose

against him, therefore, he prayed to dismiss the suit with cost.

8. In the other suit, the appellants/plaintiffs (Sant Kumar and

another) have claimed decree for specific performance of agreement

to sale dated 24.6.2015 and for grant of permanent injunction stating

almost the same things which are pleaded by him in his written

statement in Suit No.2500185A/2016. In this suit, the appellants have

also pleaded that the respondent No.1 received total consideration of

Rs.25,000/- and the appellants are ready to pay remaining amount to

him at the time of registration of sale deed, which was refused by the

respondent No.1. The appellant No.1 further stated in the suit that

only with the permission of the respondents, he constructed a ' pacca'

house over the suit property. Hence, he prayed for specific

performance of agreement to sale dated 24.06.2015 and permanent

injunction against the respondents.

9. In Suit No.2500235A/2016, the respondent No.1 (Balram)

denied all the averments in his written statement stating that, he had

never intended to execute the agreement to sale in favour of the

appellant No.1 (Sant Kumar). The appellant was made to execute the

same on the pretext of completing formalities of receiving Govt. grant

under the Chief Minister Awas Yojna. The appellant fraudulently took

his signature on the agreement for availing grant. The respondent

further pleaded that he had borrowed money of Rs.10,000/- from the

appellant No.1 for her daughter's marriage and he gave assurance to

repay on a stamp paper worth of Rs.10/-, but the plaintiff (Sant

Kumar) filed a suit on false grounds, which is liable to be dismissed.

10. After appreciating the entire evidence on record, learned

trial Court partly decreed the suit in favour of respondent/plaintiff

(Balram) in Suit No.2500185A/2016. The trial Court found that on the

part of the suit property, the appellant No.1 (Sant Kumar) has illegally

constructed a pacca house without the permission of the respondent

No.1 (Balram). The trial Court further found that there is no oral

agreement to sale was executed between the appellant No.1 and the

respondent No.1. The respondent No.1 has not executed any written

agreement to sale in favour of the appellant No.1 with regard to the

suit property. Thus, the learned trial Court partly decreed the suit in

favour of respondent (Balram) and directed the appellant to vacate

the suit property and deliver vacant possession to the respondents on

their own costs.

11. Further, the trial Court dismissed the suit filed by the

appellant (Sant Kumar) and held that the respondent has not executed

any agreement to sale on 24.06.2015 in favour of the appellant,

therefore, the appellant is not entitled for the decree of specific

performance of the aforesaid agreement, or any other relief against

the respondents.

12. All the findings passed by the trial Court in both the cases

against the present appellants, were challenged by the appellants

before the first Appellate Court on the grounds that while passing the

impugned judgment the learned Court below had not properly

appreciated the evidence and ignored the material evidence produced

by the appellant. It is also alleged by the appellants that it is an

admitted fact that first transaction took place 10-12 years' ago when

the appellant gave a sum of Rs.12,000/- to respondent No.1.

Thereafter, the appellant again paid Rs.12,000/- to the respondent in

cash under the agreement of sale dated 24.06.2015 and he was ready

and willing to pay the remaining amount to the respondent No.1 for

registration of sale deed, but he denied the same. All these facts were

duly proved his case. He also stated that with the permission of the

respondent (Balram), he (Sant Kumar) constructed a pacca house over

the part of the suit property. Therefore, the appellant (Sant Kumar) is

entitled for the relief, which was claimed by him before the trial Court.

13. Learned Appellate Court confirmed both the decrees

passed by learned Civil Judge Class-II holding that, as stated by the

appellant in his pleadings as well as in his evidence that about 12

years ago from the date of sale of agreement i.e. 24.06.2015, the age

of the appellant No.1 was about 12 years, at that time he was minor.

Therefore, it is found untrustworthy that, he paid part consideration or

advance of Rs.12,000/- to the respondent No.1. The Appellate Court

also came to the conclusion that the findings of learned trial Court

were based on the evidence available on record. The appellant was an

educated person and the respondent No.1 was an illiterate and

financially weak person. He borrowed money from the appellant No.1,

therefore, the appellant No.1 fraudulently took the signature of the

respondent No.1 on the agreement to sale. The respondent No.1

never allowed him to construct a pacca house over the suit property.

The appellant No.1 illegally constructed that house over the suit

property. Therefore, learned trial Court rightly decreed the suit filed by

respondents and directed the appellants to vacate the suit property

and deliver the vacant possession of it to respondent No.1. Thus, both

the appeals were dismissed by the learned Appellate Court.

14. In separate Second Appeal No.601/2021, learned counsel

for the appellants challenged the impugned judgment and decree on

the grounds that the learned Courts below erred in holding that the

agreement between the respondent No.1/defendant No.1 and the

appellant No.1/plaintiff No.1was void since at the time of agreement,

the appellant no.1/plaintiff No.1 was minor. On the date of execution

of agreement to sale i.e. 24.6.2015, the age of the appellant

no.1/plaintiff no.1 was about 26 years. Learned trial Court wrongly

held that execution of agreement dated 24.06.2015 was never

disputed by the respondent No.1 for which he took the monetary

consideration from the appellant. Learned courts below also erred in

holding that the appellant no.1/plaintiff no.1 was in a position to

influence the respondent No.1/defendant no.1, as he was holding the

post of Secretary and is a well-educated person.

15. The appellants also contended that the learned courts

below also not considered the fact that, the respondent no.1 had

knowledge regarding the construction of the pacca house over the suit

property by the appellant. He never opposed, nor objected and nor

filed any complaint before any of the appropriate authority, nor he

denied his signature over the sale of agreement. Therefore, all the

findings given by the courts below are illegal and perverse, which are

liable to be dismissed.

16. Some substantial questions of law have been proposed by

learned counsel for the appellants stating that under Section 11 of the

Contract Act, every person is competent to contract who is of the age

of majority and who is of sound mind and is not disqualified from

contracting by any law to which he is subject and also stating that

under Section 44 of the Transfer of the Property Act, the joint owner

of the property can sale his/her share from the joint property. The

said agreement to sale dated 24.06.2015 is not contrary to the

provisions of Section 17 of the Contract Act, 1872.

17. Heard learned counsel for the appellants at length on

admission and on I.A. No.3429/2021, which is an application under

Order 41 Rule 5 of the C.P.C. filed in S.A. No.665/2021 as well as on

I.A. No.3231/2021, which is an application under Order 39 Rule 1 & 2

read with Section 151 of the C.P.C. filed in S.A. No.601/2021

18. After perusing the entire records particularly the findings

given by the Courts below in favour of the respondent (Balram), this

Court does not find any illegality or perversity in the finding that about

12 years ago the appellant no.1/ plaintiff no.1 was minor because in

black and white form of agreement to sale and in document Ex.P/1,

the age of the appellant was mentioned 26 years. Thus, apparently 12

years ago from the date of execution of agreement i.e. 24.06.2015, he

was aged about 12 years. Under the Contract Act, a minor person is

not competent to execute any kind of agreement either oral or written.

The agreement to sale dated 24.06.2015 (Ex.P/1) was executed for

consideration of Rs.12,000/- which is the unregistered documents. It

was executed before the Notary. All these witnesses from the

appellant side and appellant also stated in their testimony that for

execution of Ex.P/1 the respondent himself purchased the stamp

paper, but in the back side of the aforesaid agreement, it is apparently

clear that stamp paper was not signed by Balram.

19. The appellant has failed to establish that he constructed a

pacca house over the suit property with the permission of the

respondents. Thus, without acquiring the legal title over the suit

property, he constructed a house. All these findings are based on the

proper appreciation of evidence by the learned trial Court and the

learned Appellate Court rightly held that under the influence and in

order to obtain the benefit of government scheme, the appellant took

the signature of the respondent by taking undue advantage for his

illiteracy.

20. After considering the entire evidence on record, this Court

comes to the conclusion that there is no substantial question of law

arises for consideration in these appeals. The respondent produced

reliable evidence before the trial Court. The findings given by the

Courts below in his favour are based on proper appreciation of

evidence and on legal proposition. Therefore, as no substantial

question of law is involved in both the appeals, hence, the question of

interference by this Court does not arise.

21. Consequently, both the appeals are dismissed in limine.

(SMT. ANJULI PALO) JUDGE

RJ