Rajaram vs Rajendra Singh
2023 Latest Caselaw 9188 MP

                                                         1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                               ON THE 20 th OF JUNE, 2023
                                           SECOND APPEAL No. 1709 of 2006

                          BETWEEN:-
                          1.    RAJARAM S/O CHHITAN, AGED ABOUT 79 YEARS,
                                H.NO.1848, RAMPUR,    CHAPAR   JABALPUR
                                (MADHYA PRADESH)

                          2.    JAMUNA PRASAD S/O RAJARAM, AGED ABOUT 62
                                YEARS, H.NO.1848, RAMPUR,[CHAPAR] JABALPUR
                                (M.P)

                                                                                  .....APPELLANTS
                          (BY SHRI V.S CHOUDHARY - ADVOCATE)

                          AND
                          1.    RAJENDRA SINGH BHAGIRATH PRASAD PATEL
                                H.NO.2251, WRIGHT TOWN, JABALPUR (MADHYA
                                PRADESH)

                          2.    RAVINDRA SINGH BHAGIRATH PRASAD PATEL
                                H.NO.2251, WRIGHT TOWN, JABALPUR (MADHYA
                                PRADESH)

                          3.    TRILOK SINGH PATEL BHAGIRATH PRASAD
                                PAT E L H.NO.2251, WRIGHT TOWN, JABALPUR
                                (MADHYA PRADESH)

                          4.    THE STATE      OF   M.P. JABALPUR    (MADHYA
                                PRADESH)

                                                                                 ....RESPONDENTS


                                This appeal coming on for admission this day, th e court passed the
                          following:
                                                          ORDER

This second appeal has been preferred by the appellants/plaintiffs Signature Not Verified Signed by: SATTYENDAR NAGDEVE Signing time: 6/22/2023 10:34:47 AM

challenging the judgment and decree dated 23.08.2006 passed by 4th Additional District Judge, Jabalpur in civil appeal No.13-A/2005 affirming the judgment and

decree dated 26.02.2005 passed by 15th Civil Judge Class-II, Jabalpur in civil suit No.20-A/2004 whereby plaintiffs' suit for specific performance of an agreement of sale dated 10.01.1985 (Ex-P/1) has been dismissed in toto.

2. Learned counsel for the appellants/plaintiffs submits that despite recording finding by first appellate Court to the effect that agreement in question is a proven document and despite reversing the findings of learned trial Court on the issue no.1 & 3, learned first appellate Court has, on irrelevant considerations, erred in dismissing the suit even in respect of the share of

defendants 2-3 Ravindra Singh and Trilok Singh. He further submits that in absence of any rebuttal to the evidence of the plaintiffs and upon recording finding of possession in favour of the plaintiffs, the suit ought to have been decreed in toto.

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

4. Apparently, the agreement in question is a handwritten document on a stamp of Rs.5/- and on reverse of it, there is no mention of any purpose to purchase the stamp, which is said to have been executed by Trilok Singh and his brothers, not named in the agreement and an amount of Rs.2000/- has been shown to have been paid in advance of the sale consideration and on the reverse of it there is signature of a person acknowledging receipt of Rs.5800/- on 06.10.1996 as against the plot of an area 2600 sq.ft. although the agreement is in respect of an area 2400 sq.ft. On the basis of documentary evidence available on record learned first appellate Court has in para 13 of its judgment Signature Not Verified Signed by: SATTYENDAR NAGDEVE Signing time: 6/22/2023 10:34:47 AM

held that there are eight co-owners of the plot in question, who have not signed the agreement and they have also not been made party to the suit. It has also been held by learned first appellate Court in para 14 of its judgment that the appellants/plaintiffs have not adduced any evidence to prove that there was any power of attorney in favour of defendants 2-3 by other co-owners. As such, holding the defendants 2-3 Ravindra Singh and Trilok Singh to be incompetent persons, learned courts have refused to grant decree of specific performance in favour of the plaintiff.

5. As the plaintiffs claim themselves to be in possession, therefore, during the course of argument, learned counsel for the appellants submits that they are not willing to get refund of advance/sale consideration paid by them.

6. In view of the aforesaid discussion, in my considered opinion, learned Courts below have not committed any illegality in not exercising discretion in favour of the plaintiffs to pass decree of specific performance.

7. Resultantly, this second appeal having no substantial question of law involved in it, deserves to be and is hereby dismissed in limine under Order 41 Rule 11 CPC.

8. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE SN

Signature Not Verified Signed by: SATTYENDAR NAGDEVE Signing time: 6/22/2023 10:34:47 AM