Noor Khan vs Sheikh Afzal
2022 Latest Caselaw 8465 MP

                                                   1
                              IN THE HIGH COURT OF MADHYA PRADESH
                                           AT JABALPUR
                                                   BEFORE
                                 HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                            ON THE 27th OF JUNE, 2022

                                       SECOND APPEAL No. 3068 of 2019

                           Between:-
                           NOOR KHAN S/O NATTHU , AGED ABOUT 50
                           YE A R S , OCCUPATION: LABOUR R/O. VILL.
                           DHANGAON       TEH.   KHANDWA  (MADHYA
                           PRADESH)

                                                                        .....APPELLANT
                           (BY SHRI JAGTENDRA PRASAD BANSAL-ADVOCATE)

                           AND

                      1.   SHEIKH AFZAL S/O SHRI SHEIKH MOHAMMAD ,
                           AGED ABOUT 70 YEARS, DHANGAON TEH. AND
                           DIST. KHANDWA (MADHYA PRADESH)

                      2.   JINNAD BI W/O LATE SHEIKH AZGAR , AGED
                           ABOUT 65 YEARS, DHANGAON TEH. AND DISTT.
                           (MADHYA PRADESH)

                      3.   RAFIQUE S/O LATE SHEIKH AZGAR , AGED
                           ABOUT 45 YEARS, DHANGAON TEH. AND DISTT.
                           (MADHYA PRADESH)

                      4.   SHAFI ALIAS SHAFIQUE S/O LATE SHEIKH
                           AZGAR , AGED ABOUT 35 YEARS, DHANGAON
                           TEH. AND DISTT. (MADHYA PRADESH)

                      5.   BEGUM BI W/O LATE SHEIKH AKBAR , AGED
                           ABOUT 75 YEARS, DHANGAON TEH. AND DISTT.
                           (MADHYA PRADESH)

                      6.   ASLAM S/O LATE SHEIKH AKBAR , AGED
                           ABOUT 50 YEARS, DHANGAON TEH. AND DISTT.
                           (MADHYA PRADESH)

                      7.   AKRAM S/O LATE SHEIKH AKBAR , AGED
Signature Not              ABOUT 50 YEARS, DHANGAON TEH. AND DISTT.
 SAN
Verified                   (MADHYA PRADESH)
Digitally signed by
SWETA SAHU            8.   SAYEEDA BI D/O LATE SHEIKH AKBAR , AGED
Date: 2022.06.28
12:32:10 IST
                            2
        ABOUT 52 YEARS, OCCUPATION: HOUSEWIFE
        DHANGAON TEH. AND DISTT. (MADHYA
        PRADESH)

9.      JAHIDA BI W/O SALEEM , D/O. SHEIKH AKBAR,
        AGED ABOUT 42 YEARS, R/O. GOKULGANJ
        NEAR BAGICHA, MAHU TEH. MAHU DISTRICT
        INDORE,(MADHYA PRADESH)

10.     JUBEDA BI, D/O SHEIKH AKBAR , AGED ABOUT
        35 YEARS, VILLAGE DHANGAON TEH. AND
        DISTT. KHANDWA (MADHYA PRADESH)

11.     JAMEELA BI W/O SALEEM , D/O. SHEIKH
        AKBAR, AGED ABOUT 38 YEARS, R/O NEAR
        JUMMA MASJID BADWAH TEH. BADWAH,
        DISTRICT KHARGONE (MADHYA PRADESH)

12.     HAMIDA BI W/O MUNNA PATHAN , D/O. SHEIKH
        AKBAR, AGED ABOUT 55 YEARS, R/O. BAJRANG
        GHAT NAYA MOHALLA NEAR KABRISTAN
        BADWAH TEH. DISTRICT KHARGONE (MADHYA
        PRADESH)

13.     STATE    OF MP THROUGH COLLECTOR
        KHANDWA, DISTT. KHANDWA (MADHYA
        PRADESH)

                                                           .....RESPONDENTS
        (SHRI R. MATHAI, PANEL LAWYER FOR RESPONDENT
        NO.13/STATE)

      Th is appeal coming on for hearing this day, t h e court passed the
following:
                                   ORDER

This Second Appeal has been filed challenging the judgment and decree dated 16.09.2019 passed by IIIrd Additional District Judge Khandwa in RCA- 500015/2016, whereby appeal filed by the appellant/plaintiff has been dismissed confirming the judgment and decree passed by First Civil Judge Class-II Nimad, Khandwa, MP in Civil Suit No.14-A/2014, whereby learned trial court dismissed the suit of specific performance of contract of sale, filed by the appellant/plaintiff and decreed the counter claim filed by the defendants for

declaration of title, restoration of possession and permanent injunction with regard to the property in question, i.e. 5 Decimal land.

2. Learned counsel for the appellant/plaintiff submits that on the basis of agreement of sale dated 22.01.2009, appellant agreed to purchase the land in question and paid entire consideration of Rs.62500/- to the defendants on the same date and in turn they handed over possession to the plaintiff over the land in question. He submits that thereafter, another agreement was executed on 02.03.2009 whereby time for execution of sale deed was fixed upto 01.02.2010. Learned counsel for the appellant submits that appellant has always been ready and willing to perform his part of contract and after payment of entire sale consideration nothing was required to be paid on his part and he is still ready and willing to get executed the sale deed in pursuance of the agreement in question.

3. Learned counsel submits that learned courts below have wrongly dismissed the suit and wrongly decreed the counter claim filed by the defendants. He prays for admission of the appeal.

4. Heard learned counsel for the appellant.

5. From bare perusal of the agreement (Exhibit P-1) it is clear that on the first date itself the entire consideration is said to have been paid including delivery of possession to the plaintiff. As such prima facie this document is

nothing but a complete sale in the light of pronouncement by Division Bench of this Court in the case of Natthu Khan vs. Komal and Others, reported in 2010 (II) MPWN 4, therefore, this agreement itself appears to be inadmissible in evidence and in absence of registration, the same cannot be considered.

6. After due consideration of the evidence available on record, learned courts below have held that this was the plaintiff himself who did not get

executed the sale deed in pursuance of agreement despite the fact that time was essence of the contract and the sale deed was to be executed on or before 01.02.2010 as has been mentioned specifically in second agreement dated 02.03.2009 (Exhibit P-2).

7. As the plaintiff himself failed to get executed the sale deed in his favour, therefore, learned courts below have not committed any mistake in refusing decree of specific performance in favour of the plaintiff/appellant.

8. As regards decree of restoration of possession and permanent injunction granted by learned courts in favour of defendants is concerned, there is also no illegality because undisputedly the respondents/defendants are owner of the suit property. As such they being owner of the suit property are entitled for decree of restoration of possession including permanent injunction in absence of any title of the plaintiff over the land in question.

9. Accordingly, there being no substantial question of law involved in the second appeal, the same is dismissed in limine. However no order as to costs.

(DWARKA DHISH BANSAL) JUDGE ss