Kaluwa vs Islamuddin
2022 Latest Caselaw 14624 MP

                                                               1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                            BEFORE
                                          HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                   ON THE 11th OF NOVEMBER, 2022

                                                 FIRST APPEAL No. 408 of 2010

                                   BETWEEN:-
                                   KALUWA S/O SHRI MUSWA KUMBHAR, AGED
                                   ABOUT 35 YEARS R/O VILL. NAND TEH.
                                   GAURIHAR DISTT. CHHATARPUR (MADHYA
                                   PRADESH)

                                                                                            .....APPELLANT
                                   (BY SHRI SUYASH TRIPATHI, ADVOCATE)

                                   AND
                           1.      ISLAMUDDIN S/O PANKAR MUSSALMAN, AGED
                                   ABOUT 48 YEARS, R/O VILLAGE NAND, TAHSIL
                                   GAURIHAR DISTT. CHHATARPUR (MADHYA
                                   PRADESH)

                           2.      THE STATE OF MADHYA PRADESH THROUGH
                                   THE COLLECTOR CHHATARPUR, DISTRICT
                                   CHHATARPUR (MADHYA PRADESH)

                                                                                          .....RESPONDENTS
                                   (BY SHRI D.S. LODHI, ADVOCATE)

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

                           following:
                                                              JUDGMENT

This appeal was admitted on 21/06/2010 and today is listed for consideration of pending application for urgent hearing.

2. With the consent of parties, the appeal is heard finally.

3. This first appeal has been preferred by defendant 1 challenging the judgment and decree dated 09/02/2010 passed by 6th Additional District Judge, Fast Track Court, Chhattarpur (M.P.) in Civil Suit No.70-A/2006, whereby learned Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 11/17/2022 5:28:13 PM

trial Court has, in the suit for specific performance of agreement of sale dated 23/07/2003 (Ex.P/1), passed decree of refund of advance consideration of Rs.80,000/- along with interest of Re.1/- p.m. from 23/07/2003 to 26/10/2006 and thereafter 6% p.a. from 26/10/2006 till realization of the amount of Rs.80,000/-.

4. Respondent 1/plaintiff instituted a suit for specific performance of a registered agreement of sale dated 23/07/2003 executed by appellant/defendant 1 with regard to agricultural land survey No.241/2 area 0.119 hectare and survey No.373 area 0.721 hectare situated in Village Padariya, Tahsil Gourihar for total consideration of Rs.82,000/- against which the plaintiff paid an amount of Rs.80,000/- in advance, with the assurance that rest of the amount of Rs.2,000/- will be paid at the time of registration of sale deed. The plaintiff alleged that because the defendant 1 did not execute the sale deed, therefore, he filed the suit.

5 . The appellant/defendant 1 appeared and filed written statement denying the plaint allegations and contended that he did not execute any agreement of sale but he being illiterate and poor person, the plaintiff got executed agreement of sale, instead of an agreement required to be executed for making of the bricks. It is contended that in fact no amount was paid by the plaintiff. With these contentions, the suit was prayed to be dismissed.

6. On the basis of pleadings, learned trial Court framed issues and recorded evidence of the parties and after due consideration of the same, vide judgment and decree dated 09/02/2010 held, that agreement in question was executed by defendant 1 in favour of the plaintiff and as against the total sale consideration of Rs.82,000/-, the defendant 1 received an amount of Rs.80,000/- but did not perform his part of agreement within the stipulated period. With these findings, learned trial Court held that as the land belongs to the State Government, therefore, it could not have been sold without prior permission of the Collector, therefore, the plaintiff is not entitled for decree of specific performance and Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 11/17/2022 5:28:13 PM

resultantly, decreed the suit only for refund of advance consideration of Rs.80,000/- with interest.

7. Learned counsel for the appellant/defendant 1 submits that no agreement was executed by defendant 1, but in place of agreement required to be executed with regard to making of bricks, the plaintiff got executed the sale agreement of the land in question, that too without payment of any advance consideration. He further submits that the defendant 1 has failed to prove payment of consideration of Rs.80,000/- to the defendant 1. Even as per the findings of learned trial Court recorded with regard to ownership of the land in question, the agreement in question is a false and fabricated document and cannot be given effect. With these submissions, he prays for allowing the appeal.

8 . Learned counsel for the respondent 1/plaintiff submits that after due consideration of the oral and documentary evidence and after considering the registered agreement of sale (Ex.P/1), learned trial Court has rightly decreed the suit for refund of consideration amount of Rs.80,000/- with interest and there is no illegality in the impugned judgment and decree passed by learned trial Court.

9. Heard learned counsel for the parties and perused the record

10. Following point for determination is arising for consideration in the present appeal:-

Whether on the facts and in the circumstances of the case, the decree of refund of advance consideration of Rs.80,000/- with interest, can be said to be illegal?

11. The agreement in question dated 23/07/2003 is a registered document which according to its language, is an agreement of sale, which bears photographs of both the parties and is on requisite stamp, which has also been proved by the plaintiff by adducing his evidence as well as the evidence of attesting witnesses Chunuwad (PW/2) and Kamta (PW/3), which has been found reliable and sufficient by Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 11/17/2022 5:28:13 PM

learned trial Court towards proof of agreement in question.

1 2 . After perusal of the statements of the aforesaid three witnesses, no illegality appears to have been committed by learned trial Court in holding that the agreement of sale was executed by defendant 1 in favour of the plaintiff.

13. Now the only question for consideration is with regard to payment of advance consideration of Rs.80,000/- by the plaintiff to the defendant 1, which has also been proved by the aforesaid witnesses and the defendant 1 has failed to rebut the aforesaid evidence regarding execution of the agreement and payment of advance consideration of Rs.80,000/-.

14. In view of the aforesaid findings recorded by learned trial Court with regard to execution of agreement of sale and payment of advance consideration of Rs.80,000/-, the plaintiff has rightly been held to be entitled for refund of advance consideration of Rs.80,000/-, while refusing decree of specific performance.

15. Accordingly, there being no illegality in the impugned judgment and decree passed by learned trial Court, the first appeal deserves to be and is hereby dismissed. However, no order as to costs.

(DWARKA DHISH BANSAL) JUDGE RS

Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 11/17/2022 5:28:13 PM