Sampat vs Shanta Bai & Ors.
2022 Latest Caselaw 6367 MP

                                         S.A. No.861/1997
                                  1

     IN THE HIGH COURT OF MADHYA PRADESH AT
                    JABALPUR

     BEFORE HON'BLE SMT. JUSTICE NANDITA DUBEY

                SECOND APPEAL NO.861/1997

       Between:-
       SAMPAT, S/O JANAN GOND,
       OCCUPATION - CULTIVATOR,
       R/O VILLAGE SILORA, TEHSIL SAUNSAR,
       DISTRICT CHHINDWARA (M.P.)

                                         .....APPELLANT
       (By Shri G.S. Baghel, Advocate)

       AND

1.     SMT SHANTIBAI, W/0 UKANDRAO KODAPE,
       AGED ABOUT 60 YEARS,

2.     GANGADHAR, S/O LATE UKANDRAO KODAPE,
       AGED ABOUT 39 YEARS,

3.     MURLIDHAR, S/O LATE UKANDRAO KODAPE,
       AGED ABOUT 32 YEARS

4.     PRABHAR, S/O LATE UKANDRAO KODAPE,
       AGED ABOUT 28 YEARS

       RESPONDENTS NO. 1 TO 4 ARE RESIDENTS OF
       POLICE LINE, TAKLI BUILDING NO.21/92,
                                                 S.A. No.861/1997
                                   2


      NAGPUR, POST TEHSIL, DISTRICT NAGPUR,
      (MAHARASHTRA)

5.    SMT SUSHILE. W/O SADASHIV BALERAO
      AGED 45 YEARS, R/O KULLIPURA SAVNER,
      TEHSIL SAVNER, DISTRICT NAGPUR
      (MAHARASHTRA).

6.    SMT. GANGA BAI, W/O DOMAJIM KOLDE
      AGED 42 YEARS, R/O TIWANGI,
      TAHSIL KAMLESHWAR,
      DISTRICT NAGPUR (MAHARASHTRA).

7.    SMT LILABAI, W/O SAMPATRAO DALE,
      AGED 35 YEARS, R/O SAWADRI ,
      TEHSIL KAMLESHWAR, DISTRICT NAGPUR
      (MAHARASHTRA).

8.    THE COLLECTOR CHHINDWARA,
      STATE OF MADHYA PRADESH.
                                             .....RESPONDENTS



      Arguments heard on     : 09.12.2021
      Order delivered on      : 28.04.2022


                      JUDGMENT

Plaintiff/appellant has filed this second appeal against the judgment and decree dated 03.07.1997, passed in Civil Appeal S.A. No.861/1997

No.29-A/1996 by District Judge, Chhindwara, partly reversing the judgment and decree dated 29.06.1996, passed by the Civil Judge Class I, Saunsar, District Chhindwara in C.S. No. 26-A/1993.

2. This second appeal was admitted on 16.04.1998 on the following substantial questions of law :-

(1) Whether the lower appellate Court was right in dismissing a decree of specific performance to the extent of share of Ukandrao (now decreased) merely because it came to the conclusion that the appellants were not able to prove that they had paid Rs.3,000/- after an agreement was executed by way of consideration ?

(2) Whether under the facts and circumstances of the case the Court below should have granted the decree for damages for breach of contract on the part of the respondent No.2 ?

(3) Whether the lower appellate Court should have granted a decree for possession of half share of the suit property without passing a decree for partition ?

(4) Whether the decree passed by the lower appellate Court regarding possession of half share is executable ?

3. Briefly stated, the plaintiff/appellant filed a suit for specific performance against defendant No.1 Ukhandrao to the S.A. No.861/1997

extent of his half share in Khasra No. 117 (total area 4.860 hectares or 11 acres) situated at village Silora, Tehsil Saunsar, district Chhindwara on the basis of an agreement to sale dated 21.03.1991, executed between plaintiff and defendant No.1 Ukandrao, the ancestors of respondents No. 1 to 7 with regard to khasra No.117 for a total area of 11 acres for a consideration of Rs.33,000/- (@ Rs.3,000/- per acre). He paid an advance of Rs.13,000/- and was put in possession of the same. As per plaintiff, the time for execution of sale deed was upto 02.05.1992, however, the same was extended to 21.03.1993. It was alleged that a sum of Rs.3,000/- was further paid on 12.05.1992 to Ukandrao. It was the further case that after the execution of agreement, plaintiff/appellant came to know that Ukandrao had only half share in the suit land, he therefore asked Ukandrao to sale his half share for half of the agreed amount, i.e., 16,500/- out of which he had already paid Rs.16,000/- but Ukandrao did not agree, hence the suit.

4. The defendant No.1/respondent in his written statement denied all the contentions of the plaintiff. It was contended that agreement dated 21.03.1991 was for the entire land, i.e, 4.860 hectares for a total consideration of Rs. 33,000/- and on payment of advance of Rs.13,000/-, plaintiff was put in possession of the entire land i.e., 4.860 hectares. It was further S.A. No.861/1997

contended that defendant No.1/respondent was the sole owner of the property as his brother Baburao had relinquished his share in the property in his favour on 10.01.1992. It was further contended that he was always ready and willing to execute the sale deed but the plaintiff/appellant due to his financial condition was not ready to execute the sale deed, hence on 02.05.1992, the time limit for execution was extended. He also filed a counter claim seeking possession from the plaintiff and claimed damages to the extent of Rs.20,000/- and mesne profit amounting to Rs.10,000/-.

5. The trial Court recorded a finding that defendant No.1 was the sole owner of the suit land. It was further held that on considering the statement of Baburao (D.W.-2), who deposed that he knew that his brother had got the entire land mutated in his name and had also executed agreement to sale for the entire land and he has no objection in this regard and the plaintiff (P.W.-1) had also stated in para 8 of his deposition that Baburao had relinquished his share in the suit property in favour of Ukandrao, in presence of 'Panchas' and therefore he executed the agreement for purchased of entire land. The learned Court further observed that the plaintiff was not ready and willing to purchase the suit land and made some interpolation in the agreement to sale and holding that plaintiff has not come with clean hands and dismissed the suit, whereas the counter claim filed by the defendant was S.A. No.861/1997

decreed by the judgment and decree dated 29.06.1996 and plaintiff was directed to hand over/return the possession of 4.860 hectares of Khasra No.117 to defendant No.1 Ukandrao.

6. Aggrieved by the judgment and decree dated 29.06.1996, the plaintiff/appellant preferred an appeal. He also moved an application under Order 41 Rule 27 of C.P.C. to produce the original agreement dated 21.03.1991 and the receipts issued by the sub-Registrar.

7. The appellate Court, though dismissed the application filed under Order 41 Rule 27 of C.P.C. but partly allowed the appeal reversing the finding regarding sole ownership of Ukandrao. The appellate Court further held that plaintiff/appellant was always ready and willing to purchase the half share but Ukandrao was not ready to sell the half share only. However, the decree for specific performance was denied for the reason that the plaintiff did not come with clean hands before the Court, instead defendant No.1 was directed to return the advance of Rs.13,000/-.

8. I have heard the learned counsel for the parties and perused the record.

9. As regards the substantial question of law No.1, grant of decree for specific performance of contract is a S.A. No.861/1997

discretionary relief. This discretion has to be exercised judiciously and not arbitrarily, hence the conduct of the plaintiff plays an important role. The Courts ordinarily would not grant any relief in favour of the person who approaches the Court with dirty hands. Both the Courts below have recorded a concurrent finding that the appellant had failed to prove that he paid Rs.3,000/- by way of part payment on 12.05.1992 to defendant No.1. The Court has further recorded that the appellant has made interpolation in the date on the agreement, which is made the basis for filing of the suit. Both the Courts have held that appellant is not entitled to decree for specific performance to the extent of half share as prayed, as he has not come with clean hands before the Court. Hence, the question No.1 is decided against the appellant.

10. As far as substantial question of law No.2 is concerned, it is framed under some misconception that there was a breach on the part of respondent No.2. In the present case, the respondent No.2 is State and not a private person. In the instant case, the agreement was executed between plaintiff and defendant No.1 for the entire area (4.860 hectares). Baburao D.W.-2 in his evidence has stated that he was present at the time of agreement and had no objections with regard to sale of the entire land by his brother. He has further stated that he knew that the entire land is recorded in the name of his brother. Despite knowing that S.A. No.861/1997

Baburao had agreed to sell his share, plaintiff has not impleaded him as a party and filed the suit to the extent of half share of defendant No.1 only. Hence, there was no breach on the part of Baburao, hence question of law No.2 with regard to grant of decree for damages for breach of contract does not arise. This substantial question of law is therefore, again decided against the appellant.

11. The substantial questions of law No.3 and 4, are framed under some misconception of fact. As the suit was filed for specific performance and not for partition. Both the Courts below have recorded a concurrent finding that appellant is not entitled for the decree for specific performance of half share of Ukandrao as he claimed in the suit. In the instant case, the agreement dated 21.03.1991 was with regard to entire area of suit land, i.e., 4.860 hectares. However, the suit was filed only for half share of the suit property, though, Ukandrao and his brother Baburao (D.W.-2) both were ready to sell the entire land as per the original agreement dated 21.03.1991, as evident from their evidence on record.

12. Admittedly, pursuant to the agreement dated 21.03.1991, the appellant was put in possession of entire suit land by defendant No.1 Ukandrao. As evident from statement of S.A. No.861/1997

Baburao (D.W.-2), this fact was in his knowledge to which he admittedly never objected, which showed his implied consent to entire transaction. Plaintiff (P.W.-1) in para 6 of his evidence has stated that he had returned the possession of half of the land and remained only in possession of half of the share of Ukandrao (defendant No.1). However, in para 9 he has admitted that he had not returned 5 ½ acres of land to Ukandrao and rest of the land is also not taken back by Baburao. The Trial Court has not found the same to be proved, as apart from his oral statement, which was also denied by Gangadhar (D.W.-1) and Baburao (D.W.-2), there was no document to substantiate his claim. The trial Court has therefore, directed him to hand over the possession of entire land i.e., 4.860 hectares to defendant No.1, as the possession was delivered by the defendant No.1 himself while executing the agreement.

13. The appellate Court, on the other hand has relied on the oral statement of plaintiff/appellant that he has returned half share of Baburao by raising a medh, only for the reason that Baburao (D.W.-2) has not filed any suit reclaiming his possession and under this presumption, passed a decree holding that defendant No.1 is entitled to possession of only half share of the Khasra No.117, i.e., 2.430 hectares. The finding recorded by S.A. No.861/1997

lower appellate Court to this extent is absurd, based on perverse finding which cannot be countenanced.

14. Earlier, respondents No.1 to 7 have filed an application I.A. No.4960/1998 for revocation of the order dated 16.04.1998 and directing the appellant to hand over the possession of undisputed half portion of the suit property. This application came up for hearing on 19.08.1998 and the Court directed that it shall be considered at the time of hearing. This order shows that the entire land, i.e., 4.860 hectares is still in the possession of present appellants. The judgment and decree passed by the lower appellate Court is, therefore, modified to this extent and it is held that respondents No. 1 to 7 (LRs of Ukandrao) are entitled to the possession of entire land, i.e., 4.860 hectares of Khasra No.117. Resultantly, substantial question of law Nos.3 and 4 are decided against the appellant.

15. For the reasons stated herein above, the substantial questions of law are thus answered against the appellant. However, the judgment and decree of the lower appellate Court is modified to the extent indicated herein above.

16. Resultantly the appeal fails and is dismissed.

(Nandita Dubey) Judge SMT. GEETHA NAIR 28/04/2022 gn 14:52:25 +05'30' 2022.04.29