Smt. Sadhana Singh Sengar vs Jinesh Jain
2022 Latest Caselaw 13466 MP

                                                             01

       IN THE HIGH COURT OF MADHYA PRADESH
                    AT GWALIOR
                           BEFORE
       HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL

                 ON THE 13th OF OCTOBER, 2022


                  MISC. APPEAL No. 802 of 2022

     Between:-
1. SMT. SADHANA SINGH SENGAR W/O
     LATE SHRI DR VIJAY KUMAR SENGAR,
     AGED ABOUT 56 YEARS, MIG 185
     MADHAV    NAGAR     JHANSI ROAD
     LASHKAR (MADHYA PRADESH)

2. ABHISHEK SENGAR S/O LATE SHRI
     VIJAY KUMAR SENGAR, AGED ABOUT 28
     YEARS, MIG 185 MADHAV NAGAR,
     JHANSI ROAD, LASHKAR GWALIOR
     (MADHYA PRADESH)

3. ABHINAV SENGAR S/O LATE SHRI VIJAY
     KUMAR SENGAR, AGED ABOUT 24
     YEARS, MIG 185 MADHAV NAGAR,
     JHANSI ROAD, LASHKAR GWALIOR
     (MADHYA PRADESH)
1.




                                                 .....APPELLANT
     (SHRI AMIT LAHOTI WITH SHRI B.K. TYAGI, ADVOCATE FOR
     APPELLANTS)

     AND

1. JINESH JAIN S/O SHRI KANTICHAND
   JAIN, AGED ABOUT        49 YEARS,
   OCCUPATION: CONTRACTOR CHHATRI
   ROAD (MADHYA PRADESH)
2. STATE OF M.P. THR. COLLECTOR DIST.
                                                                 02

   SHIVPURI (MADHYA PRADESH)

                                              .....RESPONDENTS
   (SHRI S.K. SHRIVASTAVA, ADVOCATE FOR RESPONDENT NO.1)

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

                              JUDGMENT

Appellants have preferred this appeal aggrieved by the order dated 7.2.2022 passed by Seventh District Judge Shivpuri (M.P.) in case No.RCS A/106/2021 by which application under Order 39 Rule 1 and 2 read with Section 151 CPC filed by the respondent- plaintiff has been allowed.

In brief facts of the case are that appellant No.1 is wife of late Shri Vijay Singh Sengar and appellants No. 2 and 3 are sons of late Shri Vijay Singh Sengar. They are resident of Jhansi Road Lashkar Gwalior. Respondent-plaintiff Jinesh Jain is a contractor resident of Chhatri Road Shivpuri. Respondent-plaintiff has filed a civil suit against appellants for specific performance and permanent injunction saying that predecessor in the interest of the appellants namely Vijay Singh Sengar was in the ownership and possession of agricultural land situated at Village Nahorikalan Tahsil and District Shivpuri which is situated at Survey No. 945/1, 1658/1, 1659/1, 946/1, 1660, 1666, 1667, 1668, 1671 Rakwa No.0.295, 0.500, 0.300, 0.295, 0.290, 0.330, 0.380, 0.190, 0.060

Hactare, total nine survey numbers area 2.630 hactare. Out of the aforesaid survey numbers, survey No.945/1 rakwa 0.295, survey no.1658/1 rakwa 0.500, survey no. 1659/1 rakwa 0.300 hectare total three survey numbers area 1.095 hectare was sold by late Vijay Singh Sengar to plaintiff Jinesh Jain on 11.09.2019 for a consideration of Rs.17,00,000/-. It was agreed between the parties that 22ft 6 inch wide passage shall be left by Vijay Singh Senger from his private land to access the plaintiff to his land. The said fact was also mentioned in the sale-deed dated 11.09.2019. After aforesaid sale, in the ownership Vijay Singh Senger total 6 survey numbers area 1.545 hactare land remained. Vijay Singh Senger also agreed to sale the aforesaid remaining land @ Rs.62 Lakhs per Bigha to plaintiff on 29.11.2019 and received Rs.25 Lakhs cash and Rs.15 Lakhs was received by cheque No.959380 on 29.11.2019 and Rs.6,00,000/- was received by cheque No.959370 on 10.05.2019. Respondent-plaintiff had issued a cheque No.959370 dated 10.05.2019 worth Rs.23 Lakhs in which Rs.17 Lakhs was of consideration amount of earlier sale and Rs.6 Lakhs was in regard to agreement to sale. Predecessor of appellants namely Vijay Singh Senger on 29.11.2019 executed an agreement to sale in front of witnesses Vivek Agarwal and Amit Trivedi. It was also agreed that before 30.01.2020, he will execute a sale-deed in favour of plaintiff. Before expiry of aforesaid date, on 29.01.2020 by referring the previous agreement to sale Vijay Singh Senger executed another agreement to sale regarding aforesaid

remaining land and assured that he will execute a sale-deed before 30.05.2020. Thereafter before expire of aforesaid dated, on 28.05.2020 by referring the previous agreement to sale, he has executed another agreement to sale and assured that he will execute sale-deed by 30.08.2020. Before expiry of aforesaid date, on 29.08.2020 with the consent of both the parties, date was extended upto 30.12.2020. Plaintiff was always ready and willing for execution of sale-deed but Vijay Singh Senger has not executed sale deed and always took time for execution of sale-deed. Before expiry of 30.12.2020, Vijay Singh Senger died. He published a notice in the newspaper on 10.07.2020 regarding agreement to sale executed by Late Shri Vijay Singh Sengar. Thereafter, appellants assured the respondent-plaintiff that after mutation, they will execute sale-deed in his favour. He told appellants to remain present before Registrar Officer on 31.12.2020 but they were not present. He has sent notices which were returned back unserved. Thereafter, he published an intimation on 25.09.2021 in Dainik Bhaskar newspaper. Due to non-fulfillment of the promise made in agreement to sale by the appellants, respondent-plaintiff preferred a civil suit for specific performance and permanent injunction against them.

In rebuttal, appellants denied plaint averments of respondents and averred that Vijay Singh Senger has not executed any agreement to sale regarding remaining land. Respondent- plaintiff has prepared a sale agreement by forging the signature of

Vijay Singh Senger. Plaintiff has not paid any amount to Vijay Singh Senger. Hence, the application filed by them deserves to be dismissed.

Learned counsel for the appellants submitted that respondent had not produced any receipt regarding payment of Rs.25 Lacs cash neither cheque of Rs.15 Lacs was encashed by them. Aforesaid documents are forged. They have not been executed by their ancestor Dr.Vijay Singh Sengar besides this possession is with them. Despite this, learned court below has granted temporary injunction in favour of respondent.

In support of his contention that the impugned order passed by the trial court cannot be sustained in the eyes of law, learned counsel for the appellants has placed reliance upon the decisions of the Hon'ble Supreme Court of India in Ambalal Sarabhai enterprise Ltd. vs. KS Infraspace LLP Ltd and another and other connected matters (2020) 5 SCC 410, Kashi Math Samsthan and another v. Srimad Sudhindra Thirtha Swamy and another 2010(1) SCC 689 and Dalip Singh v. State of U.P. and Others (2010) 2 SCC 114.

Learned counsel for the respondent submitted that at the time of paying consideration amount of first sale deed besides Rs. 17 lacs he had paid Rs.6 lacs through RTGS for which he has annexed bank statement of the respondent Jinesh Jain of 10.05.2019. Besides this, before expiry of every agreement to sale

on the request of Dr. Vijay Sengar new agreement was executed between the parties. After giving notices to appellants when they have not executed the sale deed in his favour he filed a civil suit. Despite pending of civil suit they have executed a sale deed on 5.1.2022 in which they have specifically stated that no proceeding is pending before any court. Besides this, they took interim stay from this Court on 15.06.2022. Thereafter, on 29.07.2022 they have also sold some part of land in which they have also stated that no proceeding is pending neither any stay is granted. They have not come before the Court with clean hands. The respondent is having a good reputation and he is financially sound. Just not to comply the agreement to sale deed executed by their ancestor they are relying upon false story that the aforesaid agreements were forged. In these situation, learned court below on going through the plaint averments supported by documents which were executed between the parties rightly allowed his application of interim injunction. No interference is called for.

Learned counsel for the respondent has placed reliance upon decision of the Suprement Court in the case of Maharwal Khewaji Trust v. Baldev Dass, 2004 (8) SCC 488.

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

It is not disputed that in between respondent and ancestor of appellants a transaction took place for purchase and sale of land

situated at village Noharikalan, District Shivpuri under which respondent purchased 1.095 hectare land from Vijay Singh Sengar for the consideration of Rs.17 Lacs. Besides Rs.17 lacs he has paid Rs.6 lacs more to the ancestor of appellant Dr. Vijay Sengar for which appellant could not justify for what Rs.6 Lacs Vijay Sengar took. Besides this, on bare perusal of agreement to sale dated 29.11.2019, it is abundantly clear that ancestor of the appellant Dr. Vijay Sengar has agreed to sell land situated at village Noharikalan AB Road Shivpuri bearing survey no. 946/1 area 0.295 hectare, survey No.1660 area 0.290 hectare, survey no.1666 area 0.330 hectare, survey no.1667 area 0.380 hectare, survey No.1668 area 0.190 hectare, survey no. 1671 area 0.060 hectare total survey No.6 area 1.545 hectare for Rs.62,00,000/- for which Rs.6 Lacs by cheque No.959370 dated 10.05.2019, Rs.15 Lacs by cheque No.959380 and Rs.25 Lacs cash total Rs.46,00,000/- was received by the ancestor of the appellant and agreed to execute the sale deed by taking remaining amount by 30.01.2020. Thereafter, due to non- registration of sale deed upto 30.01.2020 on 29.01.2020 by referring the earlier agreement to sale, another agreement to sale was executed between the parties which was extended upto 30.05.2020. Thereafter, due to non-execution of sale deed before the expiry of the aforesaid date 30.05.2020 on 28.05.2020 with reference to earlier agreement to sale another agreement to sale was executed and assured that he will execute sale-deed by 30.08.2020. Before expiry of aforesaid date, on 29.08.2020 with

the consent of both the parties, date was extended upto 30.12.2020 for execution of sale deed as per contract dated 28.05.2020. The aforesaid agreement executed in front of witness Amitabh Trivedi and Vivek Agarwal. During the extension period of execution of sale deed ancestor of the appellants died. Thereafter, respondent issued a publication in newspaper and gave notices to the appellants for execution of sale deed but they have not executed. Learned counsel for the appellants during arguments submitted that as per averments of respondent he has paid Rs.6 lacs by cheque bearing no.959370 but same cheque was issued for paying the consideration amount of earlier sale Rs.17 lacs. In this regard, learned counsel for the respondent has produced the statement of bank account which shows that initially he has given a cheque bearing No. 959369 which could not be honoured thereafter through cheque bearing no. 959370 he has paid through RTGS. Rs.2300059/- to the ancestor of the appellants. Despite this, appellants have not produced any document along with their affidavit so that aforesaid documents can be disbelieved.

Looking to the facts and circumstances of the present case and the judgments submitted by the learned counsel for the appellants in the cases of Ambalal Sarabhai enterprise Ltd. (supra), Kashi Math Samsthan (supra) and Dalip Singh (supra) are not applicable to the present case. The appellants are not entitled to get any relief as prayed for. The learned trial court has rightly passed the impugned order and does not call for any

interference in the present misc. appeal.

The appeal sans merits and is accordingly dismissed.

(DEEPAK KUMAR AGARWAL) JUDGE ojha/van

VANDANA VERMA 2022.10.17 11:17:12 -07'00'