Madhya Pradesh High Court
Sanjay Sonkar vs Shyam Kishore Yadav on 21 August, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 21st OF AUGUST, 2023
FIRST APPEAL NO. 1566 of 2023
Between:-
SANJAY SONKAR S/O LATE SHRI KUMWAR
BAHADUR SONKAR, AGED ABOUT 49 YEARS,
H.NO. 348 MOTIMAHAL BHANSIPUR DISTRICT
JABALPUR (MADHYA PRADESH)
.....APPELLANT
(APPELLANT-SHRI SANJAY SONKAR IS PRESENT
IN PERSON)
AND
1. SHYAM KISHORE YADAV S/O LATE SHRI RAM
SEVAK YADAV, AGED ABOUT 67 YEARS, R/O
524 GANPATI R/O GARHA HFATAK DISTIRCT
JABALPUR (MADHYA PRADESH)
2. SMT. SHASHKALA YADAV W/O SHYAM
KISHOR YADAV, AGED ABOUT 60 YEARS, 524
GANPATI NIWASI GARHA FATAK JILA
JABALPUR (MADHYA PRADESH)
3. ARUNA YADAV W/O NANDKISHORE YADAV 524
GANPATI NIWASI GARHA FATAK JILA
JABALPUR (MADHYA PRADESH)
4. REKHA YADAV W/O SHASHI BHUSHAN YADAV
524 GANPATI NIWASI GARHA FATAK JILA
JABALPUR (MADHYA PRADESH)
5. KUMARI JUHI YADAV W/O SHRI
NANDKISHORE YADAV 524 GANPATI NIWASI
GARHA FATAK JILA JABALPUR (MADHYA
PRADESH)
2
.....RESPONDENTS
(BY SHRI K.L. PRAJAPATI, ADVOCATE FOR
RESPONDENTS)
...................................................................................................................................................................
This appeal coming on for admission this day, the court passed the
following:
ORDER
This first appeal has been preferred by the appellant/plaintiff
challenging the judgment & decree dtd. 19.06.2023 passed by 22nd
District Judge, Jabalpur in Civil Suit No. 770A/2021 whereby learned
Court below in the suit for specific performance has passed decree of
refund of consideration of Rs.5,00,000/- along with interest @ 3% p.a.
w.e.f. the date of agreement dtd. 30.06.2020 (Ex. P/3).
2. Facts in short are that the plaintiff/appellant had instituted a suit for
specific performance of an agreement of sale dtd. 30.06.2020 (Ex.P/3)
allegedly executed by defendant 1-Shyam Kishore Yadav in favour of
plaintiff to sell the disputed house for consideration of Rs. 5,00,00,000/-
after receipt of advance consideration amount of Rs. 5,00,000/-. Alleging
readiness and willingness to get executed the sale deed, the suit was filed.
3. The defendants appeared and filed written statement denying the
plaint averments contending that the defendant 1-Shyam Kishore Yadav is
not owner of the suit property but the defendants 2-5 are owners and they
have not executed any agreement in favour of the plaintiff to sell the
disputed house nor received any advance consideration. With the
aforesaid submissions, the suit was prayed to be dismissed.
4. On the basis of pleadings, learned trial Court framed issues and
recorded evidence of the parties and vide impugned judgment and decree
dtd. 19.06.2023 dismissed the suit for specific performance, however,
finding the agreement of sale to be proved, granted decree of refund of
advance consideration of Rs.5,00,000/- along with interest @ 3% p.a.
w.e.f. 30.06.2020 only against the defendant 1.
5. Learned counsel for the appellant/plaintiff submits that learned trial
Court has while deciding the issue No.1, found that the agreement was
executed by defendant 1 after receipt of advance consideration of
Rs.5,00,000/- and he submits that because the defendant 1 was taking
care of the property of the defendants 2-5, therefore, he rightly executed
agreement of sale and in view of findings on issue No.1, the decree of
specific performance ought to have been passed by learned trial Court in
favour of the plaintiff. As such, he prays for allowing the first appeal.
6. Learned counsel appearing for the respondents 1-5 supports the
impugned judgment & decree and prays for dismissal of the first appeal.
7. Heard learned counsel for the parties and perused the record.
8. Following points for determination are arising in the instant first
appeal:-
i) Whether the defendant 1 was competent to execute
agreement of sale dtd. 30.06.2020 (Ex. P/3) in respect of the suit
property owned by the defendants 2-5 ?
ii) Whether in spite of the fact that the defendant 1 is not owner
of the suit property, the plaintiff is entitled to decree of specific
performance ?
9. Undisputedly, the defendant 1-Shyam Kishore Yadav is not owner
of the house in question, who allegedly executed agreement on
30.06.2020 in favour of the plaintiff after receipt of an advance
consideration amount of Rs.5,00,000/- as against the sale consideration of
Rs.5,00,00,000/-. Learned trial Court has after holding trial and after
appreciation of evidence available on record, vide paragraph 21 of the
impugned judgment, also held that the defendant 1 is not owner of the
disputed house and factum of ownership of house was known to the
plaintiff. The finding recorded by learned trial Court although has been
assailed by the plaintiff by filing first appeal but the appellant who is also
a registered practitioner has failed to point out any evidence sufficient to
prove ownership of the house with the defendant 1 and has also failed to
show any perversity in the findings of learned trial Court with regard to
ownership of the house.
10. After considering the aforesaid factual position in respect of
alleged ownership of house of the defendant 1, learned trial Court has
instead of passing decree of specific performance, passed decree of
refund of advance consideration of Rs.5,00,000/- along with interest @
3% p.a. w.e.f. 30.06.2020.
11. In view of the fact that the defendant 1 is not owner of the suit
property, he was not having any right to execute agreement. Even there is
no power of attorney or any other document available on record executed
by defendants 2-5 in favour of the defendant 1, giving power to him to
execute the agreement of sale. As such, in my considered opinion, the
defendant 1 was not even competent to execute agreement of sale in
respect of the suit house owned by the defendants 2-5.
12. In the light of said finding of fact of ownership against the
defendant 1 in respect of the suit house, in my considered opinion the
plaintiff is not entitled for decree of specific performance.
13. In view of aforesaid discussion, learned trial Court does not appear
to have committed any illegality in dismissing the suit for specific
performance.
14. Resultantly, this first appeal fails and is hereby dismissed in limine
under order 41 rule 11 CPC.
15. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
Pallavi
Digitally signed by KUMARI
PALLAVI SINHA
Date: 2023.08.24 13:03:23 +05'30'
