Madhya Pradesh High Court
Sunil Patel vs Khet Singh [D] Th. Lrs & Ors. on 15 February, 2023
Author: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 15th OF FEBRUARY, 2023
FIRST APPEAL No. 130 of 2004
BETWEEN:-
SUNIL PATEL THROUGH HIS LEGAL
REPRESENTATIVES
(i) SONA KURMI W/O LATE SUNIL AGED 31 YEARS.
(ii) HARSH KURMI S/O SUNIL AGED 14 YEARS.
(iii) DHRUV KURMI S/O SUNIL AGED 10 YEARS.
ALL RESIDENT OF VILLAGE - BUDIBAGROD,
TEHSIL - TYONDA, DISTRICT - VIDISHA (M.P.)
.....APPELLANT
(BY MR. K.N. GUPTA - SENIOR ADVOCATE
ASSISTED BY MR. RINKU SHAKYA - ADVOCATE)
AND
I. KHET SINGH TH. LR'S
1. SMT. TARABAI W/O LATE KHET SINGH
2. PRAKASH S/O LATE KHET SINGH
3. REKHA BAI D/O LTE KHET SINGH
4. SUMAN S/O LATE KHET SINGH (MINOR)
5. NARENDRA S/O LATE KHET SINGH (MINOR)
BOTH UNDER THE GUARDIANSHIP OF MOTHER
SMT. TARABAI W/O LATE KHET SINGH
ALL RESIDENTS OF VILLAGE - SAMNAPUR,
TEHSIL - GAIRATGANJ, DISTRICT - RAISEN
(M.P.)
6. ARJUN SINGH S/O KSHAMADHAR PRASAD
GAUR R/O BUDIBAGRODA TEHSIL - BASODA,
DISTRICT - VIDISHA (M.P.)
7. STATE OF MADHYA PRADESH THROUGH
COLLECTOR, DISTRICT - VIDISHA (M.P.)
.....RESPONDENTS
(MR. J.P. MISHRA AND MR. GAURAV MISHRA -
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Signed by: ALOK KUMAR
Signing time: 17-Feb-23
4:42:55 PM
2
ADVOCATES FOR RESPONDENT NO. 6)
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This appeal coming on for hearing this day, the court passed the
following:
JUDGMENT
Heard on I.A. No. 2954 of 2013, an application under Order 41
Rule 27 read with Section 151 C.P.C., filed by respondent No. 6 for
taking the carbon copy of application/objection filed by the
respondent/plaintiff before the Sub Registrar, Basoda on 07/01/2001, as
an additional evidence.
2. By filing reply vide Doc. No. 2130 of 2013, learned counsel for
the appellant opposed the application on the ground that the application
(I.A. No. 2954 of 2013) has been filed after a long delay of 9 years. The
document is a carbon copy and cannot be taken on record so also the
respondent has not shown any reason for not filing the document before
passing the decree. Learned counsel for appellant placed his reliance
upon the cases of Shalimar Chemicals Works Ltd. vs. Surendra Oil &
Dal Mills (Refineries) & Ors.; [2010 (8) SCC 423], Union of India vs.
Ibrahim Uddin & Anr.; [2012 (8) SCC 148] to buttress his arguments.
3. In the present case, the respondent who is seeking to produce the
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carbon copy of the document as additional evidence, has failed to
establish that notwithstanding the exercise of due diligence, such
evidence was not within his knowledge or could not, after the exercise
of due diligence, be produced by him at the time when the decree
appealed against was passed. Therefore, I.A. No. 2954 of 2013 is
dismissed hereby.
4. Present first appeal under Section 96 of C.P.C. has been filed
against the judgment and decree dated 14.5.2004 passed by Second
Additional District Judge (Fast Track Court), Ganj Basoda, District
Vidisha in Civil Suit No. 25A/2003, whereby the civil suit filed by
respondent No. 6 / plaintiff for specific performance of an agreement to
sale dated 05.9.2001 was decreed.
5. The facts in brief to decide the appeal are that respondent No. 6 /
plaintiff filed a plaint for specific performance of an agreement to sale
dated 05.9.2001 stating therein that defendant No. 1 Khet Singh agreed
to sell the agricultural land bearing survey Nos. 301/2, 351/2, 369/2,
373/2 and 639/3 total area 2.966 hectares situated in village - Budi
Bagrod, Patwari Halka No. 60, Tehsil - Basoda, District Vidisha for a
consideration of Rs. 1,60,000/- out of which Rs.50,000/- was received
by Khet Singh on the day of execution of agreement and remaining
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balance of Rs.1,10,000/- was agreed to be paid on the day of execution
of sale deed and for that purpose, an agreement to sale was reduced in
writing and the same was notarized. The plaintiff further pleaded that
when the plaintiff after arranging the funds of Rs.1,10,000/- asked
defendant Khet Singh to execute the sale deed, he avoided the same
whereas the plaintiff was always ready and willing to get the sale deed
executed. After coming into knowledge about the fact that defendant
No. 1 Khet Singh is going to execute the sale deed in favour of
defendant No. 6, plaintiff submitted an application/objection on
07.9.2001 in the office of Sub-Registrar, Basoda and prayed not to
execute the sale deed in favour of any other person. However,
defendant No. 1 Khet Singh (since dead) even after executing the
agreement to sale dated 05.9.2001, by playing fraud with the plaintiff,
executed the sale deed on 10.9.2001 in favour of appellant / defendant
No. 6 Sunil Patel. Therefore, the plaintiff by filing the civil suit prayed
that the decree of specific performance be granted in favour of plaintiff
and the sale deed dated 10.9.2001 be declared as null and void against
the plaintiff. It was further prayed that defendants be injuncted to
interfere in possession of the plaintiff.
6. On receiving the notice, appellant / defendant No. 6 Sunil Patel
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filed the written statement. In the written statement, case of the plaintiff
was denied. The fact of execution of agreement to sale between the
plaintiff and defendant No. 1 was also denied and it was also pleaded
that the defendant No. 6 / appellant had no knowledge about any
objection filed before the Sub-Registrar by the plaintiff / respondent No.
6. It was further pleaded that the appellant / defendant No. 6 Sunil Patel
purchased the land without having any knowledge of earlier agreement.
7. On the basis of pleadings of the parties, learned trial Court framed
various issues and after taking evidence and hearing the parties on
merits, decreed the suit in favour of plaintiff / respondent No. 6 vide
impugned judgment and decree.
8. Learned counsel for the appellant argued that learned trial Court
has acted with illegality and material irregularity and fell in error in
proceeding the suit ex-parte against the legal representatives of deceased
Khet Singh without serving copy of the plaint on them. It is further
argued that learned trial Court fell in error in admitting the document
ExhibitP-2 in evidence as the document ExhibitP-2, which is a
photocopy, is not admissible in the evidence and, therefore, it cannot be
taken into consideration. It is further argued that the learned trial Court
committed grave error in decreeing the suit against appellant / defendant
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No. 6 without establishing that the sale deed has not been executed in
good faith between Khet Singh and appellant and it was not in notice of
the appellant / defendant No. 6 about the execution of agreement to sale
dated 05.9.2001 between the plaintiff and defendant No. 1 Khet Singh.
Further argument is that learned trial Court fell in error in not
considering the fact that when the plaintiff himself has asked the relief
for refund of part payment of Rs.50,000/- in that case no decree for
specific performance of the agreement to sale should have been granted.
9. On the other hand, learned counsel for respondent No. 6 opposed
the appeal and argued that the impugned judgment and decree passed by
learned trial Court is in accordance to law and present appeal deserves to
be dismissed.
10. Heard learned counsel for the rival parties and perused the
available record.
11. The perusal of record reveals that respondent No. 6 / plaintiff
Arjun Singh has examined himself as PW-1 and Suraj Singh as PW-2
and produced documents i.e. agreement to sale (ExhibitP-1) and
objection raised before Sub-Registrar, Basoda along with its original
receipt (ExhibitP-2). On the other hand, appellant / defendant No. 6
examined himself as DW-1 and Rajkumar as DW-2. Defendant also
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produced registered sale deed Exhibit D-1.
12. In his court statement plaintiff Arjun Singh (PW-1) supported his
case and stated that agreement to sale (ExhibitP-1) was executed with
deceased Khet Singh in respect to disputed land for a consideration of
Rs.1,60,000/-. Out of which Rs.50,000/- has been paid and rest of the
amount of Rs.1,10,000/- was agreed to be paid at the time of execution
of sale deed. He has further stated that when he asked Khet Singh to
execute the sale deed after taking rest of the amount of Rs.1,10,000/-, he
denied the same. The plaintiff had always been ready and willing to get
the sale deed executed, however, defendant No. 1 Khet Singh remained
unwilling and evasive. He has further stated that he filed an objection
(Exhibit P-2) before the Sub-Registrar, however, despite his objection
the sale deed was executed by Khet Singh in favour of defendant No. 6 /
appellant Sunil.
13. PW-2 Surajmal, who is the attesting witness of Exhibit P-1, has
corroborated the statement of plaintiff / PW-1 and proved his signature
on Exhibit P-1 as an attesting witness.
14. The statements of plaintiff and his witness remained unchallenged
in their cross-examination. The defendant No. 6 / appellant has failed to
bring anything on record on account of which the statements of above
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witnesses can be disbelieved.
15. Learned counsel for the appellant argued that Exhibit P-2 is a
photocopy and therefore, it should not have been admitted. However, the
above argument is not acceptable because the record reveals that at the
time of recording of evidence when the said document was exhibited
and endorsed, no objection was raised by the appellant / defendant No. 6
about its admissibility. The record also reveals that even respondent
No.6 / plaintiff was confronted with the document Exhibit P-2. The
Apex Court in the case of P.C. Thomas vs. P.M. Ismail & Ors.; [(2009
10 SCC 239] has held that when a document has been endorsed and
admitted in evidence and no objection was raised at the time of
exhibition of the document or any time later during trial so also when
the witnesses produced by the parties were confronted with the
document, in that case, objection about sustainability of the document
cannot be raised at first appellate stage. This Court in the case of Chief
Municipal Officer Vidisha vs. Champalal; [2007 (2) MPJR 150], has
also laid down that when the photocopy of the sale deed exhibited
without objection and no objection has been raised at the time of
admission, the sale deed can be read in evidence. In view of the above
the learned trial Court has not erred in taking cognizance of Exhibit P-2
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and holding that plaintiff / respondent No. 6 had raised objection before
the Sub-Registrar, Basoda. Consequently, the malafide of Khetsingh as
well as appellant / defendant No. 6 for execution of sale deed is also
found to be proved.
16. Learned counsel for the appellant placing his reliance on the
cases of Shenbagam & Ors. vs. K.K. Rahinavel; [2022 AIR (SC)
1275], U.N. Kishnamurthy vs. A.M. Krishnamurthy; [2022 AIR (SC)
3361] argued that since appellant is a bonafide purchaser and, therefore,
decree of specific performance in respect to agreement to sale cannot be
drawn in favour of plaintiff / respondent No. 6. In this respect, evidence
of appellant / defendant No. 6 Sunil is relevant, who was examined as
DW-1. Appellant / defendant No. 6 Sunil in his cross-examination was
not able to give details in respect to sale deed (Exhibit D-1) executed in
his favour by Khet Singh. Appellant / defendant No. 6 Sunil in his
examination-in-chief, which is in the form of affidavit, stated that the
sale deed was executed in his favour. However, at para 4 of his cross-
examination, he has stated that the sale deed was executed in favour of
his father Jagdish Patel. Appellant / defendant No. 6 Sunil has further
stated at para 4, 5 and 6 of his cross-examination that he did not sign the
sale deed and could not tell the survey numbers of the land which was
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sold to him because the document was written before his father. The
appellant / defendant Sunil even failed to tell the consideration amount
and the place where the sale deed was executed. Respondent No. 6 /
plaintiff at para 9 of his evidence specifically mentioned that before the
sale deed was executed, he informed Jagdish Patel that agreement to
sale had already been executed by Khet Singh in his favour. Jagdish
Patel is the father of appellant / defendant No. 6 Sunil Patel and was the
kingpin in the whole transaction of execution of sale deed Exhibit D-1
in favour of Sunil Patel which is clear as crystal by the statement of
appellant / defendant No. 6 Sunil who said in his cross examination that
the sale deed was executed in favour of his father. All the above facts
show that the sale deed Exhibit D-1 was executed with malafide
intention on 10.09.2001 just after five days from the date of execution of
agreement to sale dated 05.09.2001 (Exhibit P-1) to get higher price.
Therefore, learned trial Court has rightly held that appellant / defendant
No. 6 is not a bonafide purchaser.
17. As per law laid down by the Apex Court in the case of R.K.
Mohammed Ubaidullah and Ors. vs. Hajee C. Abdul; [(2000) 6 SCC
402], subsequent purchaser must prove his bonafides and protection
under Section 19 (b) of Specific Relief Act to subsequent purchaser can
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only be given if bonafide is proved by the subsequent purchaser because
burden of proof as good faith is on the purchaser who pleads that he is
an innocent purchaser. The same principle has been laid down in the
case of Ratan Kumar Savnani vs. Lakhanlal Agrawal; [2007 (1)
MPLJ 378].
18. By citing the case law of Shenbagam & Ors. vs. K.K. Rahinavel;
[2022 AIR (SC) 1275], U.N. Kishnamurthy vs. A.M. Krishnamurthy;
[2022 AIR (SC) 3361], Padmakumari & Ors. vs. Dasayyan & Ors.;
[2016 (1) MPLJ 589] learned counsel for the appellant argued that in
this case, readiness and willingness of respondent No. 6 / plaintiff is not
proved, therefore, the decree of specific performance cannot be given,
however, above argument is not sustainable because in the light of the
plaint pleadings as well as the statement of the plaintiff, it is apparent
that respondent No. 6 / plaintiff was ready and willing for execution of
the sale deed and to perform his part of the contract.
19. Learned counsel for the appellant further argued that during
pendency of the suit, Khet Singh expired and an application for
substitution of his legal representatives was filed but the same was never
decided and the case was proceeded ex-parte against the legal
representatives of Khet Singh without serving notice to them, therefore,
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the entire trial is vitiated. In support of his arguments, learned counsel
for the appellant relied upon the case law of Ram Vishal vs. Shobha
Ram & Ors.; [2006 (2) MPLJ 68] and Zenabai vs. Kubrabai; [C.
Revn. No. 224 of 1979 (I) ; Decided on 15-12-1979]. However, on
perusal of record, it reveals that on different dates, notices to legal
representatives of Khet Singh were sent but they chose not to appear or
contest the case. Order-sheet dated 10.3.2004 indicates that learned trial
Court has allowed the prayer of the plaintiff to make necessary
amendment in the plaint for substitution of legal heirs of deceased Khet
Singh. Therefore, it is clear that the relief prayed by the plaintiff for
substitution of legal representatives of deceased Khet Singh by filing the
application was granted by the learned trial Court on 10.3.2004. It is
pertinent to mention here that in this first appeal also, legal heirs of Khet
Singh were sent notices and despite service of notice, they did not chose
to appear. Legal heirs of Khet Singh never raised any objection in
respect to ex-parte order of learned trial court. The appellant / defendant
No.2, who is a subsequent purchaser, has no locus to raise such
objection.
20. In view of the above discussion, this Court comes to the
conclusion that the impugned judgment and decree passed by the
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Second Additional District Judge (Fast Track Court), Ganjbasoda,
District Vidisha in Civil Suit No. 25A/2003 does not suffer from any
illegality or perversity and is hereby affirmed.
21. Accordingly, present first appeal fails and is hereby dismissed.
(SUNITA YADAV)
JUDGE
AKS
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Signed by: ALOK KUMAR
Signing time: 17-Feb-23
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