Satyabhama vs Tulsidas
2023 Latest Caselaw 1967 MP

                                1

        IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                            BEFORE
         HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                   ON THE 3rd OF FEBRUARY, 2023

                 SECOND APPEAL No. 2747 of 2022

     Between:-
1.   SATYABHAMA W/O BADRI PRASAD, AGED
     ABOUT 55 YEARS, OCCUPATION: HOUSE WIFE
     DEVARI POLICE STATION AND TEHSIL
     JAISINGH NAGAR (MADHYA PRADESH)

2.   HARIKANT S/O BADRI PRASAD, AGED ABOUT
     32 YEARS, OCCUPATION: AGRICULTURIST
     R/O DEVARI POLICE STATION AND TEHSIL
     JAISINGH NAGAR DISTRICT SHAHDOL
     (MADHYA PRADESH)

3.   SHRIKANT S/O BADRI PRASAD, AGED ABOUT
     30 YEARS, OCCUPATION: AGRICULTURIST
     R/O DEVARI POLICE STATION AND TEHSIL
     JAISINGH NAGAR DISTRICT SHAHDOL
     (MADHYA PRADESH)

4.   RAVIKANT S/O BADRI PRASAD, AGED ABOUT
     28 YEARS, OCCUPATION: AGRICULTURIST
     R/O DEVARI POLICE STATION AND TEHSIL
     JAISINGH NAGAR DISTRICT SHAHDOL
     (MADHYA PRADESH)

                                                  .....APPELLANTS
     (SHRI ANIL DWIVEDI, ADVOCATE)


     AND

1.   TULSIDAS S/O SHRI BHUKHANRAM, AGED
     ABOUT 75 YEARS, DEVARI AT PRESENT R/O
     JAISINGH NAGAR POLICE STATION AND
     TEHSIL   JAISINGH   NAGAR    (MADHYA
     PRADESH)
                                      2

2.    RAJENDRA PRASAD TIWARI S/O SHRI
      RAMSAROVAR TIWARI, AGED ABOUT 55
      YEARS, R/O VILLAGE DEVRI POLICE
      STATION AND TEHSIL JAISINGH NAGAR
      DISTRICT SHAHDOL (MADHYA PRADESH)

3.    STATE OF M.P. THROUGH COLLECTOR
      SHAHDOL DISTRICT SHAHDOL (MADHYA
      PRADESH)

                                                    .....RESPONDENTS


...................................................................................................................................................................

      This appeal coming on for admission this day, Court passed the
following:
                                 ORDER

This second appeal has been preferred by appellants/plaintiffs challenging the judgment & decree dtd. 31.10.2022 passed by District Judge, Jaisinghnagar, District Shahdol in Civil Appeal No. 3-A/22 reversing the judgment & decree dtd. 17.12.2021 passed by 2 nd Civil Judge, Jaisinghnagar, District Shahdol in Civil Suit No. 300007-A/2014 whereby learned trial Court decreed the suit for specific performance, which in civil appeal, has been reversed and dismissed.

2. In short the facts are that original plaintiff-Badri Prasad Tiwari (since died now LRs), instituted a suit on 22.11.2013 for specific performance of agreement of sale dtd. 17.09.2007 against the defendants in respect of the land khasra No. 220/2 area 0.166 hectare. It is alleged that agreement was entered into for consideration of Rs.7,000/- and advance amount of Rs. 5,000/- was paid with the further agreement to pay rest of the amount of Rs. 2,000/- at the time of execution of sale deed. It is also alleged that possession was handed over on the date of agreement and thereafter the defendant 1 had no right over the land in question but

he has sold the land on 17.06.2013 in favour of the defendant 2, which does not create any right in his favour. With these allegations, the suit was filed for specific performance of agreement of sale and for declaring the sale deed dtd. 17.06.2013 null and void and also sought relief of permanent injunction on the basis of possession.

3. The defendants 1-2 appeared and filed written statement denying the plaint allegations and alleging the agreement in question to be a forged and fabricated document, prays for dismissal of the suit.

4. Learned trial Court vide judgment & decree dtd. 17.12.2021 decreed the suit for specific performance and upon filing the civil appeal by defendants 1-2, learned first appellate Court has allowed the appeal and by reversing the judgment & decree of trial Court, dismissed the suit holding the agreement in question (Ex. P/6) to be a forged and fabricated document.

5. Learned counsel for the appellants/plaintiffs submits that there are no material changes/interpolations in the agreement of sale, which on the basis of oral evidence, were overlooked by learned trial Court while decreeing the suit for specific performance, but learned first appellate Court without there being any challenge/plea in the written statement in respect of interpolations/changes made in the agreement, has taken them into consideration, which in absence of any challenge/pleading in the written statement, were not required to be considered and learned first appellate Court has erred in dismissing the suit, considering them to be material changes in the agreement. In support of his submissions, he placed reliance on the decision of Supreme Court in the case of Ram Khilona and others vs. Sardar and others (2002) 6 SCC 375 and prays for admission of the appeal.

6. Heard learned counsel for the appellants/plaintiffs and perused the record.

7. The alleged agreement of sale appears to have been executed on 17.09.2007 with the recital that the land is being sold for consideration of Rs. 7,000/-, out of which an amount of Rs. 5,000/- has been paid by Badri Prasad Tiwari to Tulsidas and on the same date, possession was also handed over. However, apparently in the agreement khasra no. 220/2- 0.41 acre and its area 0.166 hectare has been typed later on and original area has been changed. At the last of clause 1 of agreement also, there are two lines typed in different ink. Further in clause 2 of the agreement, in second line also there is interpolation/change of area.

8. From perusal of the judgment of first appellate Court, it is clear that the learned first appellate Court has taken into consideration all the aforesaid changes/interpolations made in the agreement in detail and has come to conclusion that the agreement in question is a forged and fabricated document and accordingly, dismissed the suit holding that in absence of proof of agreement, the plaintiff is not entitled for decree of specific performance.

9. From bare perusal of the agreement in question, in my considered opinion there are material alterations/interpolations in the agreement of sale and the suit has also been filed after a long lapse of time i.e. after about 6 years, therefore, in my considered opinion, learned first appellate Court has not committed any illegality in not exercising discretion of granting specific performance in favour of the plaintiffs.

10. Resultantly, there being no involvement of substantial question of

law in second appeal, the same is hereby dismissed. However, no order

as to costs.

11. Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2023.02.08 13:12:31 +05'30'