Badri Prasad Dubey vs Chhanilal Trivedi
2023 Latest Caselaw 18161 MP

                                                           1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                             ON THE 31 st OF OCTOBER, 2023
                                             SECOND APPEAL No. 572 of 2020

                          BETWEEN:-
                          BADRI PRASAD DUBEY S/O SHRI DEVIDEEN DUBEY,
                          AGED ABOUT 53 YEARS, OCCUPATION: SERVICE R/O
                          VILL. PARA TAH. RAJNAGAR DISTT. CHHATARPUR
                          (MADHYA PRADESH)

                                                                                        .....APPELLANT
                          (BY SHRI J.L. SONI - ADVOCATE)

                          AND
                          1.    CHHANILAL TRIVEDI S/O SHRI RAMSAHAY
                                TRIVEDI, AGED ABOUT 71 YEARS, R/O VILL. PARA
                                TAH. RAJNAGAR DISTT. CHHATARPUR (MADHYA
                                PRADESH)

                          2.    STATE OF M.P. THROUGH COLLECTOR DISTT.
                                CHHATARPUR (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                          (BY SHRI PANKAJ RAJ - PANEL LAWYER FOR THE STATE )

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

                          following:
                                                            ORDER

This second appeal has been preferred by the appellant/plaintiff-Badri Prasad Dubey challenging the judgment and decree dated 30.11.2019 passed by 5th Additional District Judge, Chhatarpur in regular civil appeal no.19-A/2019 affirming the judgment and decree dated 27.01.2015 passed by Civil Judge Class-II, Rajnagar, District Chhatarpur in civil suit no.94-A/2010 whereby learned Courts below have dismissed the appellant/plaintiff's suit filed for Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 11/1/2023 12:18:19 PM

specific performance of agreement of sale dated 30.12.2009 (Ex.P/8) and passed decree of refund of advance consideration of Rs.18,000/- along with interest @ 6% per annum as well as cost of the suit.

2. Learned counsel for the appellant/plaintiff submits that both the Courts below have concurrently held that the agreement of sale dated 30.12.2009 (Ex.D/8) is a proven document executed by defendant 1 in favour of plaintiff after receipt of advance consideration amount of Rs.18,000/- but illegally refused to pass decree of specific performance on its own wrong assumptions and on the premise that the suit property is not exclusively owned by defendant Chhannilal but it being ancestral property was succeeded by his two sisters and

two brothers namely Saraswati, Benibai, Damru and Prabhu. He further submits that since after execution of agreement dated 30.12.2009, the plaintiff has always been ready and willing to get executed the sale deed in pursuance of the agreement in question and after informing the date by issuance of notice he remained present before the sub-Registrar for registration of the sale deed. He further submits that on the basis of revenue record available on record, the defendant 1 Chhannilal is exclusive owner, therefore, learned Courts below have committed illegality in passing the impugned judgment and decree. With the aforesaid submissions, he prays for admission of the second appeal.

3. Heard learned counsel for the appellant and perused the record.

4. Although while deciding the issue no.1, learned Courts below have concurrently held that the agreement for sale was executed by defendant 1 in favour of the plaintiff on 30.12.2009 for consideration of Rs.20,000/- after receipt of advance consideration amount Rs.18,000/- but on the basis of admissions of plaintiff himself, learned trial Court vide para 22 of its judgment came to conclusion that the suit property is ancestral property of defendant 1 Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 11/1/2023 12:18:19 PM

and there are other four successors of the suit property. Learned Courts below have also considered oral and documentary evidence in respect of readiness and willingness of the plaintiff and concurrently held that the plaintiff has not been able to establish that he was always ready and willing to get executed the sale deed in pursuance of the agreement in question.

5. In view of the aforesaid findings, learned Courts below have refused to exercise discretion in favour of the plaintiff to pass decree of specific performance and instead passed decree of refund of advance consideration of Rs.18,000/- along with interest @ 6% per annum as well as cost of the suit.

6. Upon perusal of the entire record, this Court does not find any illegality or perversity in the findings recorded by learned Courts below. Even otherwise, it is well settled that decree of specific performance is discretionary and even if the agreement in question is a proven document, the Court is not bound to pass decree of specific performance.

7. As such, in the considered opinion of this Court, no substantial question of law is involved in the instant second appeal. Resultantly, the second appeal in absence of any substantial question of law fails and is hereby dismissed in limine under Order 41 rule 11 CPC. However, no order as to the costs.

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

(DWARKA DHISH BANSAL) JUDGE pb

Signature Not Verified Signed by: PRASHANT BAGJILEWALE Signing time: 11/1/2023 12:18:19 PM