Madhya Pradesh High Court
Rekha Bai vs Mukesh Jadone on 14 December, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 14 th OF DECEMBER, 2023
SECOND APPEAL No. 753 of 2016
BETWEEN:-
1. REKHA BAI W/O LATE SHRI SHRAWAN SINGH @
SARVAN SINGH VILL. MIRZAPUR PALI TAHSIL &
DISTRICT RAISEN (M.P)
2. RAVI S/O LATE SHRI SHRAVAN SINGH, AGED
ABOUT 13 YEARS, OCCUPATION: MINORS
THROUGH THEIR NATURAL GUARDIAN MOTHER
SMT. REKHA BAI VILLAGE MIRZAPUR PALI
TEHSIL RAISEN (M.P)
3. PRAVESH S/O LATE SHRI SHRAVAN SINGH, AGED
ABOUT 11 YEARS, OCCUPATION: MINORS
THROUGH THEIR NATURAL GUARDIAN MOTHER
SMT. REKHA BAI VILLAGE MIRZAPUR PALI
TEHSIL RAISEN (M.P)
4. KUMARIMUSKAN D/O LATE SHRI SHRAVAN
SINGH, AGED ABOUT 8 YEARS, OCCUPATION:
MINORS THROUGH THEIR NATURAL GUARDIAN
MOTHER SMT. REKHA BAI VILLAGE MIRZAPUR
PALI TEHSIL RAISEN (M.P)
5. GEETA BAI W/O HAMEER SINGH VILLAGE
MIRZAPUR PALI TEHSIL RAISEN (M.P)
.....APPELLANTS
(BY MS. JAYALAXMI IYER - ADVOCATE)
AND
1. MUKESH JADONE S/O KARAN SINGH VILL. PALI
TEH. AND DISTT. RAISEN (M.P)
2. COLLECTOR THE STATE OF MADHYA PRADESH
DISTT. RAISEN (M.P)
.....RESPONDENTS
Signature Not Verified
(BY SHRI ISHTEYAQ HUSSAIN - ADVOCATE FOR RESPONDENT - 1 MS.
Signed by: SATTYENDAR
NAGDEVE
Signing time: 12/14/2023
8:08:20 PM
2
GARIMA TIWARI - PANEL LAWYER FOR RESPONDENT 2/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/defendants
challenging the judgment and decree dated 30.11.2015 passed by District Judge,
Raisen, in RCA No.13-A/2015 reversing/modifying the judgment and decree
dated 30.06.2015 passed by First Civil Judge Class-I, Raisen in Civil Suit
No.54-A/2013 whereby trial Court decreed the suit for specific performance of
agreement to sell (Ex.P-1), in respect of agricultural land Khasra No.45 area
1.00 acre out of 3.270 acre, which upon filing appeal by defendants/appellants
has been reversed/modified to the extent of refund of advance consideration of
Rs.1,00,000/- along with interest at the rate of 6% p.a. from the date of suit i.e.
25.07.2013 till realization, instead of decree of specific performance.
2. Learned counsel for the appellants/defendants submits that the
agreement in question (Ex.P/1) is said to have been executed by the
appellants/defendants' husband and father- Sharawan Singh but in fact it was
not executed by Sharwan Singh and despite specific denial in the written
statement, the plaintiff did not care to get examined the signature through
handwriting expert. As such in absence of proof of the agreement in question,
even decree of refund of advance consideration amount cannot be passed.
Learned counsel submits that learned Courts below have committed illegality in
holding the agreement to be a proven document and learned first appellate
Court has committed illegality in passing decree of refund of advance
consideration amount of Rs.1,00,000/- along with interest @ 6% per annum.
3. Shri Ishteyaq Hussain learned counsel appearing for the respondent 1,
supports the impugned judgment and decree passed by learned first appellate
Court and prays for dismissal of the second appeal.
4. Heard learned counsel for the parties and perused the record.
5. While deciding issue no. 1 & 2 learned Courts below have considered
the agreement of sell dated 29.06.2012 (Ex.P/1) as well as the oral evidence of
plaintiff - Mukesh Jadone and witness to the agreement Darshan Singh (PW-2)
and Manish Sharma (PW-3) and come to conclusion that the agreement was
executed by defendants' husband and father Shrawan Singh in favour of the
plaintiff - Mukesh Jadone for consideration of Rs.1,50,000/-, after receiving
advance consideration of Rs.1,00,000/-. Learned Courts below have also found
that the plaintiff was ready and willing to get executed sale deed in pursuance of
the agreement of sale and decreed the suit for specific performance.
6. First appellate Court again reappreciated the oral evidence available on
record and affirmed some findings but in the existing facts and circumstances
of the case especially in the circumstances where the original defendant has died
leaving behind him, his wife, minor sons and old aged mother, refused to
exercise discretion of granting decree of specific performance and passed
decree of refund of advance consideration of Rs.1,00,000/- along with interest
at the rate of 6% p.a. from the date of suit i.e. 25.07.2013.
7. After perusal of the entire record, this Court does not find any illegality
in judgment and decree passed by learned first appellate Court.
8. Resultantly, in absence of any substantial question of law, this second
appeal fails and is hereby dismissed.
9. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
SN
