Madhya Pradesh High Court
Didar Singh Saluja vs Kamal Singh Chouhan on 30 November, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 30th OF NOVEMBER, 2022
SECOND APPEAL No. 1201 of 2018
BETWEEN:-
1. DIDAR SINGH SALUJA S/O LATE SHRI SANT
SINGH, AGED ABOUT 57 YEARS, NEAR
BANAPURA STATION, BANAPURA, TEHSIL
SEONI MALWA DISTT. HOSHANGABAD
(MADHYA PRADESH)
2. AVDESH SINGH PARIHAN S/O LATE RAM SINGH
PARIHAR, AGED ABOUT 54 YEARS, IN FRONT
OF KALIKA NAGAR WARD NO 15
HOSHANGABAD TAHSIL (MADHYA PRADESH)
3. RAM MOHAN SINGH S/O LATE MISHRILAL,
AGED ABOUT 72 YEARS, IN FRONT OF
KAMAKHYA GARDEN KOTHI BAZAR (MADHYA
PRADESH)
4. SMT DURGA BHADORIYA ALIAS RANI W/O
L A T E PR AKAS H S I N G H BHADORIYA, AGED
ABOUT 47 YEARS, IN FRONT OF STATE BANK OF
I N D I A G I N N I C O M P O U N D TAHSIL AND
DISTRICT HOSHANGABAD (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ANAND NAYAK-ADVOCATE )
AND
1. KAMAL SINGH CHOUHAN S/O MAHENDRA
SINGH CHOUHAN, AGED ABOUT 55 YEARS,
VILLAGE PHURTALA TEHSIL BABAI DISTT.
HOSHANGABAD (MADHYA PRADESH)
2. RAMESH PRASAD YADAV S/O DAMODAR
PRASAD SINGH, AGED ABOUT 60 YEARS,
M A L A K H E D I B A S T I TAHSIL (MADHYA
PRADESH)
3. MANSINGH YADAV S/O DAMODAR PRASAD
SINGH, AGED ABOUT 57 YEARS, MALAKHEDI
BASTI TAHSIL (MADHYA PRADESH)
Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 12/1/2022
12:49:05 PM
2
4. RAM SINGH YADAV S/O DAMODAR PRASAD
SINGH, AGED ABOUT 54 YEARS, MALAKHEDI
BASTI TAHSIL (MADHYA PRADESH)
5. SMT KRISHNA BAI W/O LATE CHAIN SINGH,
AGED ABOUT 49 YEARS, N E A R MALAKHEDI
SCHOOL TAHSIL (MADHYA PRADESH)
6. VIJENDRA YADAV S/O LATE CHAIN SINGH,
AGED ABOUT 28 YEARS, N E A R MALAKHEDI
SCHOOL TAHSIL (MADHYA PRADESH)
7. PREM SHANKAR S/O LATE CHAIN SINGH, AGED
ABOUT 25 YEARS, NEAR MALAKHEDI SCHOOL
TAHSIL (MADHYA PRADESH)
8. VIJAY S/O LATE CHAIN SINGH, AGED ABOUT 23
YEAR S, N E A R M ALAKHEDI S CHOOL TAHSIL
(MADHYA PRADESH)
9. STATE OF MP THROUGH COLLECTOR
HOSHANGABAD (MADHYA PRADESH)
10. SANJAY S/O LATE CHAIN SINGH, AGED ABOUT
22 YEARS, NEAR MALAKHEDI SCHOOL TAHSIL
(MADHYA PRADESH)
11. POONAM D/O LATE CHAIN SINGH, AGED
ABOUT 20 YEARS, NEAR MALAKHEDI SCHOOL
TAHSIL (MADHYA PRADESH)
.....RESPONDENTS
(BY KU. KAMLESH TAMRAKAR, PANEL LAWYER FOR
RESPONDENT 9-STATE )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by the appellants/plaintiffs
challenging the judgment & decree dated 16.02.2018 passed by learned District
Judge, Hoshangabad in civil appeal no. 1-A/2015 affirming the judgment &
decree dated 31.10.2014 passed by learned Second Civil Judge Class-1
Hoshangabad, in Civil Suit No.39-A/2013.
Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 12/1/2022
12:49:05 PM
2. In short, the facts are that the plaintiffs instituted a suit on
30.07.2012 for specific performance of an agreement of sale dated 31.12.1991
(Ex.P/1) with regard to agricultural lands Khasra Nos. 445/6, 446, 447/2, 448/2,
449/2, 450/6, 451/5 & 451/10 total area 1.554 situated in Village Malakhedi,
Tahsil and District Hoshangabad with the allegations that the plaintiffs entered
into an agreement of sale to purchase the land in question after payment of
advance amount of consideration of Rs.1,75,000/-. It is alleged that the sale
deed was to be executed after demarcation of the land but the defendants'
ascendant Lt. Damodar Prasad Yadav did not get the land demarcated,
therefore, sale deed could not be executed and ultimately the plaintiffs after
issuing notice in the year 2006, instituted the suit.
3. The defendants appeared and filed written statement denying the
plaint allegations and contended that the plaintiffs have never been ready and
willing to get executed the sale deed. After execution of the agreement in
question and after receipt of notice, the defendants specifically denied from
execution of any agreement of sale and the suit filed is clearly barred by
limitation. With these contentions the suit was prayed to be dismissed.
4. On the basis of plaint allegations, learned trial court framed as
many as eight issues and recorded evidence of the parties. After consideration
of the same, learned trial Court vide its judgment & decree dt. 31.10.2014 held
that the agreement was executed but the plaintiffs are not entitled for decree of
specific performance, however, learned trial Court held the suit to be within
limitation.
5. Upon filing appeal by the plaintiffs, learned first appellate Court
vide its judgment & decree dated 16.02.2018 affirmed the findings of the trial
Signature Not Verified
Court and also held that the suit is clearly barred by limitation.
Signed by: KUMARI PALLAVI
SINHA
Signing time: 12/1/2022
12:49:05 PM
6. Learned counsel for the appellants/plaintiffs submits that despite
holding the agreement to be a proven document, learned Courts below have
erred in refusing decree of specific performance and the learned first appellate
Court in absence of any cross objection had no right to reverse the findings
recorded by learned trial Court with regard to limitation. He also submits that in
view of the findings recorded on issue No.1, the plaintiffs are entitled for decree
of refund of advance consideration. Accordingly, he prays for admission of the
appeal.
7. Heard learned counsel for the appellants and perused the record.
8. As per the findings recorded by the learned Courts below,
agreement dated 31.12.1991 was executed in between the plaintiffs and Lt.
Damodar Prasad. While deciding the issue No.4, learned Courts have
categorically held that the plaintiffs have never been ready and willing to get
executed sale deed in pursuance of the agreement dated 31.12.1991 (Ex. P/1).
9. Apparently, after execution of agreement dated 31.12.1991, first
notice was issued on behalf of the plaintiffs in the year 2006 whereas the suit
has been instituted on 30.07.2012.
10. From bare perusal of the agreement, it is clear that the registered
sale deed was to be executed on or before 10.02.1992 and the condition of
getting the land demarcated was not the condition precedent for execution of
the sale deed.
11. In view of the aforesaid, the suit filed by the plaintiffs is hopelessly
barred by limitation and learned first appellate Court has not committed any
error in holding the suit to be barred by limitation.
12. Even otherwise, the findings recorded by learned Courts below
Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 12/1/2022
12:49:05 PM
with regard to readiness and willingness and also on the question of limitation
being pure findings of fact, are not liable to be interferred with in the limited
scope of Section 100 CPC. As the suit was clearly barred by limitation, which
was filed after more than 20 years, learned Courts below have not committed
any illegality in not passing decree of refund of consideration also.
13. Accordingly, finding no involvement of substantial question of
law in the second appeal, the same is dismissed in limine under Order 41 Rule
11 CPC.
14. However, no order as to costs.
15. Interim application(s), if any, shall stand disposed off.
(DWARKA DHISH BANSAL)
JUDGE
Pallavi
Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 12/1/2022
12:49:05 PM
