M/S Vishal Construction vs Nanhe Khan
2022 Latest Caselaw 5720 MP

                                         1                  FA No.481 of 2015




       IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

                             BEFORE
                 HON'BLE SMT. JUSTICE ANJULI PALO
                         ON THE 20th OF APRIL, 2022

                         FIRST APPEAL No. 481 of 2015

Between:-
1. M/S VISHAL CONSTRUCTION
PARTNERSHIP FIRM
THROUGH PARTNERS

2. NARENDRA BHAKT
S/O VASUDEV BHAKT,
R/O 18 MOHAN NAGAR,
BYPASS ROAD, PIPLANI BHOPAL
(MADHYA PRADESH)

3. SHAILESH ASWAAR
S/O P.L ASWAAR
R/O 55/56 JANKI NAGAR,
CHUNABHATTI,
(MADHYA PRADESH)
                                                         .....APPELLANTS
(BY SHRI SALEEM RAHMAN, ADVOCATE)

AND

1. NANHE KHAN
S/O LATE RAMJAAN KHAN
KHAJURI KALAAN, PIPLANI
 BHOPAL
(MADHYA PRADESH)

2. SHASHIBHUSAN
S/O S.L CHATKELE
R/O 29 SATAKHI GARDEN,
KHUJRI KALAAN, BHOPAL
(MADHYA PRADESH)
                                                        .....RESPONDENTS

(RESPONDENT NO.1 BY SHRI BALAJI AKKILWAR, ADVOCATE)

This appeal coming on for hearing this day, the court passed the

following:

(JUDGMENT)

This appeal has been filed by the appellant/plaintiffs under Section 96 of the Code of Civil Procedure against the judgment and decree dated 15.05.2015 passed by learned 3rd Additional District Judge to the Court of first Additional District Judge, Bhopal in Civil Suit No.237-A/2011.

2. The brief facts of the case, are that the plaintiffs filed the suit for specific performance of contract i.e. joint venture agreement dated 20.04.2010 and for permanent injunction over the suit property bearing khasra numbers 50/2 and 151 admeasuring 6.93 acres situated at village- Khajuri Kala Piplani, Bhopal alleging that the respondent Nanhe Khan executed a registered agreement of contract of joint venture after taking a part of consideration. The total consideration was Rs.6.92 Crores. The plaintiffs/appellants have paid a total sum of Rs.3,93,00,000/- to the respondent through cheques which have been encashed by him.

3. It is also pleaded that before filing of the suit, the defendant - Nanhe Khan filed a suit bearing R.C.S.No.161-A/2011 for declaration the disputed joint venture agreement dated 29.04.2010 as null and void and not binding on him on the ground that the said

agreement was executed by playing fraud and misrepresentation. Nanhe Khan in the aforesaid civil suit filed an application under Order 39 Rules 1 and 2 for grant of temporary injunction which was dismissed vide order dated 30.03.2011. Thereafter, the aforesaid suit itself was withdrawn by Nanhe Khan.

4. In the present suit, the defendant filed the written statement denying the averments made in the plaint. It is contended that the suit land was already bequeathed among his two sons, six daughters and himself in nine parts by an oral hiba (oral gift). It is further contended that the defendant had executed the agreement for sale of land which was of his own share i.e. 0.77 acre for a consideration of Rs.4 Crores and received an amount of Rs.3,93,00,000/- towards the same. Apart from that, no other property is agreed by him to sell the plaintiffs/ appellant.

5. The trial Court vide impugned judgment and decree dated 15.05.2015 dismissed the suit filed by the appellants/plaintiffs.

6. The appellants have challenged the findings recorded by the trial Court on the grounds that every partnership firm is not required to be registered under Section 4 of the Indian Partnership Act and only registration of partnership firm is condition precedent for presentation of suit and all these formalities have been complied with. It is alleged that the trial Court committed an error of law by holding that the agreement/contract in question was not legally proved because it is the defendant case that he executed the deed of joint venture therefore,

execution of the contract is not disputed and it is to be presumed that registered document is properly executed under Sections 34, 60 and 59 of the Indian Registration Act. It is further contended that the trial Court itself rejected the plea of oral Hiba (oral gift) of the defendant. The defendant in paragraph 4 of the written statement admitted the receiving of the amount from the plaintiffs/appellants. The trial Court observed that the suit property was ancestral property as it was received by the defendant from his maternal uncle on the other hand, the trial Court rejected the plea of the defendant with regard to oral gift and the name of the defendant only is found mention in the revenue records, hence, the defendant is the sole owner of the property and there is no defect of non-joinder of necessary parties. The respondent received a huge amount as part of consideration but is not inclined to execute registered sale deed in favour of the appellants. With the aforesaid averments, it is prayed that the impugned judgment be set aside and a decree for specific performance of contract in question be passed in favour of the appellants.

7. I have heard learned counsel for the parties at length. The disputed joint venture agreement (Exhibit P-1) is dated 20.04.2010 which is a registered document. Although the respondent denied its execution by him but there is his thumb impression on the document. He has taken a plea that he is illiterate and his thumb impression has been taken on the document by fraud and misrepresentation and concealing the fact. Therefore, the aforesaid agreement is not binding on him.

8. It reflects the conduct of the respondent and also creates a dent of doubt. In the written statement in paragraph 4, he clearly admitted that he received a sum of Rs.3,93,00,000/- (Rupees Three Crores and Ninety Three Lacs only) from the appellants. On the other hand, the defendant in the same paragraph of the written statement stated that he executed the document presuming it to be a document of partition of the property among his sons. Rasheed Khan who is son of the defendant/respondent Nanhe Khan is also a witness to the aforesaid agreement who has signed the document on "C to C".

9. In view of the above, the plea of the defendant/respondent that the disputed joint-venture agreement has been got executed by him by playing fraud, misrepresentation and concealment, cannot be accepted. But, it is apparent, that the defendant executed the same by his free will, volition and without any kind of misrepresentation and accepted Rs.3.93 Crores as part consideration of the same.

10. It is very important to mention here that in the written statement, the defendant had taken a plea that the property in question is his ancestral property being received by him from his maternal uncle but neither he himself nor his witnesses, namely, Asso Bi (DW-2) and Shafique Khan (DW-3) corroborated the aforesaid fact in their Court statements. Even, no document to that effect has been filed by the respondent in the Court.

11. The case of the defendant/ respondent is that he gave the properties to their children by oral hiba (oral gift) but for completion of

the oral gift, acceptance of the same is necessary. Its acceptance is not on record. Defendant witnesses, namely, his children- Asso Bi (DW-2) and Shafique Khan (DW-3) have not corroborated the aforesaid pleading taken by their father - Nanhe Khan (defendant). None for the defendant witnesses stated about their share in the suit property. They have also not stated about the date of oral gift. Therefore, it appears that only with an intention of creating complication the plea of oral gift has been taken by the respondent/defendant. The trial Court also found that oral hiba as stated by the defendant is not proved. The trial Court also found that the defendant/respondent is the owner of only 0.77 acres out of the suit land, is not proved. The findings recorded by the trial Court have not been challenged by the respondent/defendant.

12. Hence, in the opinion of this Court, finding recorded by the trial Court with regard to Issue No.5 is liable to be interfered with and accordingly, it should be read as "Not Proved".

13. Exhibit P-1 is a registered document which was executed for a total land of 6.93 acres situated at khasra number 150/2 and 151. It is mentioned in the Agreement that the appellants are registered colonisers since 2005. In paragraph 3 of the Agreement it is stated that concerned Layout has been sanctioned from the concerned Department on 25.11.2009. It is also mentioned that possession of the entire suit land admeasuring 6.93 acres have been handed over to the appellants. From the statements of the witnesses, Nanhe Khan defendant himself, Asso Bi (DW-2) and Shafique Khan (DW-3), it is not established that

they are not in possession of the suit land or any part of it. Asso Bi (DW-2) stated that the appellants have taken the property from their father, therefore, they filed the suit for partition but no document has been filed by her in this regard. She also admitted that there was no deed of partition was executed by the respondent. It is also stated that the total land belonging to her father is about 12-13 acres. Considering the aforesaid material, it appears that some part of the properties belonging to the respondent was subject matter of sale vide Exhibit P-1 and possession of the same has also been given to the appellants to develop a colony thereon.

14. The appellant - Narendra stated that the respondent Nanhe Khan himself filed application for NOC (Exhibit P-2) after execution of the Joint Venture Agreement in question before the Nazul Officer and along with the said application he filed two affidavits Exhibits P-3 and P-4. Respondent Nanhe Khan himself gave statements in support of the appellants before the Nazul Officer which is Exhibit P-5. It is further stated by Narendra that Nanhe Khan himself filed an application (Exhibit P-7) before the Joint Director, Town and Country Planning, Bhopal for sanctioning of the layout map and it was sanction vide Exhibit P-8. It is further stated by him that Nanhe Khan also applied for diversion of the land in question which was allowed vide Exhibit P- 9 dated 21.05.2010.

15. The respondent failed to rebut all these documents in support of the plea taken by him that the agreement was not for the entire land admeasuring 06.93 acres.

16. The plaintiff witness Narendra stated that after plotting of the land in question he allotted 47 plots to different persons vide counter files of receipts Exhibit P-19 and registration certificate of the plaintiff firm is Exhibit- P-20.

17. From cross-examination of the aforesaid witness - Narendra it is apparent that he admitted that at the time of execution of the joint venture agreement on 20.04.2010, M/s Vishal Construction was shown as partnership firm whereas the registration certificate of the firm i.e. Exhibit P-18 was executed thereafter on 26.04.2011. He has also admitted in paragraphs 42-43 of the cross-examination, that the joint venture agreement in question was executed on 20.04.2010 in the name of M/s Vishal Construction which was not the registered firm at that time but it was registered later on. This witness also admitted in paragraph 46 that in the agreement in question Exhibit P-1 names of two other partners are not mentioned. He also stated that necessary plantation as per condition 12 of Exhibit P-6 has not been done. He stated that daughters of the respondent Nanhe Khan have filed a suit against him and diversion order will become ineffective in case of any dispute regarding title. It is admitted that there is no coloniser licence in the name of M/s Vishal Construction. This witness stated that licence

was issued in his favour and thereafter the partnership firm was formed but no document to this effect was produced.

18. Another plaintiff witness - Shashi Bhushan also stated that the licence was in the name of Narendra and not in favour of the M/s Vishal Construction.

19. The trial Court recorded a finding that the respondent did not receive any amount from the appellants because no document was produced to that effect. An application under Order 41 Rule 27 of the Code of Civil Procedure has been filed by the appellants along with the copy of the Bank Statements, which was operated in the name of Asthavihar Construction not in the name of M/s Vishal Construction. Plaintiff witnesses have not explained what is the relation between the Asthavihar Construction and M/s Vishal Construction. Therefore, the additional documents cannot be accepted for disposal of this appeal because Asso Bi (DW-2) and Nanhe Khan - defendant have not stated anything about any other transaction but his daughter stated that the property is in the name of his father. Asso Bi (DW-2) also stated that appellants constructed Asthavihar Colony by taking loan from his uncle.

20. In view of the above, acceptance of the amount is admitted by the defendant in the written statement but the appellants are unable to prove that they themselves complied with other conditions. Their firm was also not registered at the time of execution of alleged joint venture agreement and the coloniser licence was also not in favour of

the M/s Vishal Construction and the same was not filed by the appellants.

21. In view of the preceding analysis, the appeal is partly allowed. As the defendant himself admitted in his written statement that he received a sum of Rs.3,93,00,000/- from the appellants, it is directed that the respondent/defendant shall refund the aforesaid amount of Rs.3,93,00,000/- (Rupees Three Crores and Ninety Three Lacs only) along with interest at the rate of 12% per annum on it from the date of its receipt till he refunds the said amount.

22. Accordingly, the appeal is allowed in part.

(Smt. Anjuli Palo) Judge ks

Digitally signed by KOUSHALENDRA SHARAN SHUKLA Date: 2022.04.21 04:04:37 -07'00'