Madhya Pradesh High Court
Smt. Sushila Bai vs Rajkumar Patel on 10 February, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 10th OF FEBRUARY, 2023
SECOND APPEAL No. 2508 of 2022
BETWEEN:-
1. SMT. SUSHILA BAI W/O LATE RAJARAM,
AGED ABOUT 72 YEARS, OCCUPATION:
NILL VILLAGE KHERA TEHSIL PATAN
DISTRICT JABALPUR (MADHYA PRADESH)
2. MAHESH S/O LATE RAJARAM, AGED
ABOUT 52 YEARS, OCCUPATION:
LABOURER R/O VILLAGE KHERA TEHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
3. SMT. DEVKI BAI W/O SHRI KAMAL PATEL
D/O LATE RAJARAM PATEL, AGED ABOUT
54 YEARS, R/O VILLAGE
RANITAL(KANTORE), TEHSIL PATAN,
DISTRICT JABALPUR (MADHYA PRADESH)
4. SMT. SAROJ W/O SHRI SURENDRA D/O
LATE RAJARAM PATEL, AGED ABOUT 48
YEARS, OCCUPATION: HOUSEWIFE R/O
VILLAGE JAROND, TEHSIL PATAN,
DISTRICT JABALPUR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI PRADEEP NAVERIYA - ADVOCATE)
AND
1. RAJKUMAR PATEL S/O LATE TEKRAM
PATEL, AGED ABOUT 44 YEARS, 178
VILLAGE SURTALAI TEHSIL AND
DISTRICT JABALPUR (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH, THROUGH
COLLECTOR, JABALPUR DISTRICT
2
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI WAJID HAIDER - ADVOCATE)
(RESPONDENT NO.2/STATE BY MS.PAPIYA GHOSH - PANEL LAWYER)
This appeal coming on for admission this day, the court passed
the following:
JUDGMENT
1. This second appeal under section 100 CPC has been filed against the
judgment and decree dated 26.7.2022 passed by District Judge Patan,
District Jabalpur in R.C.A.No.75/2020 arising out of judgment and
decree dated 19.12.2017 passed by Addl. Judge, Patan to the Court of
Civil Judge Class I, Patan, District Jabalpur in Civil Suit No.122-
A/2017 by which the suit filed by the plaintiff for specific performance
of contract and permanent injunction has been decreed.
2. The appellant is the defendant who has lost his case before both the
courts below.
3. The facts necessary for disposal of the present appeal in short are that
the plaintiff/respondent filed a suit for specific performance of contract
in respect of Khasra No.15/1 area 0.090 hectares, Khasra No.71 area
0.0170 hectares, Khasra No.81 area 0.060 hectares, Khasra No.90 area
0.340 hectares, total area 0.0660 hectares situated in village Khaira,
Tahsil Patan, District Jabalpur. A registered agreement to sell was
executed on 21.10.2013 for a consideration amount of Rs.5 Lacs out of
which an amount of Rs.4 Lacs was received by the defendant/appellant
and it was agreed that the remaining amount of Rs.1 lac shall be
payable on the date of registry. The registry was to be executed within
a period of 11 months. It is the case of the plaintiff/respondent that
even after expiry of 11 months, the defendant/appellant did not take
any steps for execution of the sale-deed and, therefore, the
plaintiff/respondent contacted the appellant for supply of original
document but the original documents were not provided by the
appellant and all the times he was avoiding the same. The plaintiff had
requested the defendant no.1/appellant for execution of sale-deed on
various occasions but no action was taken and accordingly the plaintiff
sent a registered notice dated 16.4.2015 requiring the defendant to
execute the sale-deed but the defendant/appellant did not reply to the
said notice. It was further specifically pleaded that the plaintiff is in
possession of the remaining amount of Rs.1 Lac and still he is ready
and willing to perform his part of contract and accordingly the suit for
specific performance of contract was filed.
4. The appellant filed his written statement and claimed that the property
in dispute was an ancestral property. The registered agreement to sell
was executed by way of security of loan. The receipt of amount of
Rs.4 Lacs was also admitted by the appellant/defendant, however, it
was claimed that since the defendant was in need of money for
domestic purposes, therefore, he had taken an amount of Rs.4 Lacs
from the plaintiff and after adding an amount of Rs.1 Lac towards
interest, an undated cheque No.111327 was given to the plaintiff.
Thereafter, on 27.6.2014 the defendant/appellant paid the entire
amount of Rs.5 Lacs in cash and demanded back his cheque and the
agreement to sell. However, the same was not done. Accordingly, it
was prayed that the agreement to sell was not an agreement for sale of
the property but it was executed by way of security of loan. It was
further claimed that the property in dispute is the ancestral property
and everybody has a right in the same and defendant had no right or
title to alienate the suit property.
5. The trial court after framing issues and recording evidence decreed the
suit.
6. Being aggrieved by the judgment and decree passed by the trial court,
the appellant preferred an appeal which too has been dismissed by the
first appellate court.
7. Challenging the judgment and decree passed by the courts below it is
submitted by counsel for the appellant that the courts below have failed
to see that the agreement to sell was executed by way of security of
loan and an amount of Rs.4 Lacs was refunded along with an interest
amount of Rs.1 Lac. The court below failed to see that the cheque of
Rs.5 Lacs had dishonoured and accordingly the plaintiff had also
instituted a compliant under section 138 of the Negotiable Instruments
Act against Mahesh DW2 which clearly indicates that transaction in
question was a loan transaction and not an agreement to sell. It is
further submitted that the plaintiff has failed to prove his readiness and
willingness, therefore, provisions of section 16 of the Specific Relief
Act have not been complied with. Even otherwise, the decree for
specific performance of contract is a discretionary decree and instead
of directing for specific performance of contract, the courts below
could have directed for refund of the amount. Accordingly, the
appellant has proposed the following substantial questions of law :-
i) Whether the learned lower appellate court is justified
by affirming the baseless and perverse findings,
judgment and decree passed by the learned trial court ?
ii) Whether the learned courts below are justified by
holding that the suit property was not the ancestral
property of the defendant ?
iii) Whether the learned courts below are justified by
disbelieving the loan transaction between the plaintiff
and defendant's son for the purpose of only security of
such loan amount agreement to sale was got executed
Ex.P/1 ?
iv) Whether the learned courts below are justified by
holding that plaintiff has complained with section 16 of
the Specific Relief Act ?
v) Whether the learned courts below are justified by not
exercising their discretion as defined in section 20 of
the Specific Relief Act and passed the impugned
judgment and decree ?
8. Heard learned counsel for the appellant.
9. Merely by saying that the property in dispute was ancestral property,
the appellant has not proved that it had not taken the colour of a self-
acquired property. Furthermore, the appellant had taken a specific
stand that on 16.4.2014 an amount of Rs.5 Lac was returned in cash. At
the same time, it was the case of the appellant that a cheque of Rs.5
Lac was given by way of security of loan. It is also the case of the
defendant that the said cheque had dishonoured and accordingly a
complaint under section 138 of the Negotiable Instruments Act was
also filed. Thus, it is necessary to find out as to whether the said
cheque was given by way of security of loan or it was in respect of
some other transaction between the parties.
10.Rajaram (DW1) has admitted that Mahesh (DW2) had given a cheque
dated 10.9.2015 to the plaintiff. The agreement in question, Ex.P/1
was executed on 21.10.2013. The defendant in his written statement
has claimed that an amount of Rs.5 Lac in cash was returned on
27.6.2014. If the amount of Rs.5 Lac was already returned by the
appellant, then there was no question of giving another cheque of Rs.5
Lac. Furthermore, Rajaram (DW1) in paragraph 19 of his cross
examination has admitted that Mahesh (DW2) had given a cheque on
10.9.2015. If the amount was already repaid by defendant on
27.6.2014 then there was no question of giving another cheque of Rs.5
Lacs on 10.9.2015.
11.Similarly, Mahesh (DW2) in paragraph 14 of his cross examination has
specifically stated that he had issued a cheque dated 10.9.2015 for the
refund of Rs.4 Lacs which was received by him. Thus, it is clear that
the cheque dated 10.9.2015 was in respect of some other transaction
which took place between Mahesh (DW2) and the plaintiff.
Furthermore, both the courts below have given a concurrent finding of
fact that the agreement dated 21.10.2013 Ex.P/1 was executed between
the parties and an amount of Rs.4 lacs was paid. The defence of the
defendant that the agreement, Ex.P/1 was executed by way of security
of loan cannot be accepted for the reason that two contradictory stands
were taken by the defendant/appellant. As already pointed out, if the
defendant has already repaid the amount of Rs.5 Lacs on 27.6.2014
then there was no need for him to issue another cheque dated
10.9.2015, i.e. more than 1 year after the payment of cash amount.
Therefore, both the courts below have found that the defence of the
defendant/plaintiff is not plausible. It is well established principle of
law that this Court while exercising power under section 100 CPC
cannot interfere with the concurrent findings of fact unless and until
they are perverse or without record or based on inadmissible evidence.
No perversity could be pointed out by counsel for the appellant. Even
otherwise this Court has also gone through the evidence led by the
parties and accordingly it is held that the findings of the courts below
with regard to the execution of agreement, Ex.P/1 are based on sound
appreciation of evidence.
12.It is next contended by counsel for the appellant that the plaintiff has
failed to prove his readiness and willingness as required under section
16 of the Specific Relief Act and, therefore, he is not entitled for a
discretionary decree of specific performance of contract.
13.In paragraph 8 of the plaint, the plaintiff has specifically stated that he
is in possession of the remaining amount and is still ready and willing
to perform his part of contract. In paragraph 8 of his affidavit filed
under Order 18 Rule 4 CPC a similar averment has been made.
14.Only a single question was put to the plaintiff in paragraph 19 of his
cross examination that he had never approached the defendant for
execution of the sale-deed. No question was put to the plaintiff with
regard to his readiness and willingness or availability of funds. Both
the courts below have come to a conclusion that the plaintiff has
successfully established his readiness and willingness to perform his
part of contract. Accordingly the said findings of fact are held to be
based on sound appreciation of evidence.
15.It is next contended by counsel for the appellant that since the
agreement was executed for a consideration amount which was much
less than the market value of the land, therefore, the courts below
should not have exercised the discretionary power of granting decree
for specific performance of contract and could have directed for refund
of money.
16.Considered the submissions made by counsel for the appellant.
17.Rajaram (DW1) in paragraph 19 of his cross examination has stated as
under :-
19& ..........
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ml tehu dh fodz; vuqca/k i= esa of.kZr jkf'k ds fglkc ls fy[kk x;k
Fkk lk{kh us Lor% dgk fd ml le; dqN de fy[kk x;k FkkA
18.Thus, from the evidence of Rajaram (DW1) it is clear that the
agreement to sell was executed as per the market value of the land
which was prevailing at the relevant time. Merely because the
appellant has succeeded in avoiding the execution of sale-deed for a
period of 8 years would not be sufficient to deny the discretionary
jurisdiction of the specific performance of contract to the plaintiff.
19.No other argument is advanced by counsel for the appellant.
20.As no substantial question of law arises in the present appeal,
accordingly, the judgment and decree dated 26.7.2022 passed by
District Judge Patan, District Jabalpur in R.C.A.No.75/2020 so also
judgment and decree dated 19.12.2017 passed by Addl. Judge, Patan to
the Court of Civil Judge Class I, Patan, District Jabalpur in Civil Suit
No.122-A/2017 are hereby affirmed.
21.The appeal fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
HEMANT SARAF
2023.02.14 14:11:17
+05'30'
HS
