Madhya Pradesh High Court
Hari Kant vs Jaitun Bai & Ors. on 7 February, 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
FIRST APPEAL No. 146 of 1997
BETWEEN:-
HARIKANT SON OF SHRI RAMESHWAR PRASAD BRAHMAN, AGED 35
YEARS, OCCUPATION - SERVICE, RESIDENT OF VILLAGE MAGRAJ,
TEHSIL- AMARPATAN, DISTRICT- SATNA (M.P.) HAL MUKAM PADDKA
NADANTOLA, TEHSIL - AMARPATAN, DISTRICT- SATNA (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI DILIP PANDEY - ADVOCATE FOR APPELLANT)
AND
JAITUN BAI WIDOW OF JALLUDDIN MUSALMAN, AGED 60 YEARS
(DECEASED)
KAMALUDDIN SON OF SHRI JALLUDDIN MUSALMAN, AGED 30 YEARS.
SAGEER MOHAMMED SON OF SHRI JALLUDDIN, AGED 24 YEARS.
ALL RESIDENT OF PADDKA NADANTOLA TEHSIL AMARPATAN DISTRICT
SATNA (MADHYA PRADESH)
.....RESPONDENTS
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Reserved on: 01.02.2024
Pronouned on: 07.02.2024
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This First Appeal having been heard and reserved for judgment,
coming on for pronouncement on this day, Justice Gajendra Singh
pronounced the following:
JUDGMENT
This First Appeal under Section 96 of Code of Civil Procedure has
been preferred feeling aggrieved by the judgment and decree dated
27.02.1997 by Additional District Judge, Maihar to the Court of District
Judge, Satna in Civil Suit No.8-A/1993 whereby the suit of specific
performance of contract regarding survey No.88/1ka/Kha area bearing 1
acre situated at Village- Nadantola (Paddka) District - Satna was
dismissed only relief of Rs.20,000/- has been ordered to be paid to
respondent No.1 with interest of 6% per annum from the date of filing of
suit i.e. 22.10.1993.
2. Facts in brief are that plaintiff/appellant filed a suit for specific
performance of contract of sale (Ex.P-6) of one acre land forming part of
Khasra No.88/1ka/Kha situated at Village Ndantola, Tahsil Amarpatan
(Ex.P-4) on 07.04.1992 for a sum of Rs.50,000/- out of which Rs.20,000/-
were paid on the same date. According to agreement remaining
Rs.30,000/- were to be paid within 15 days which were not accepted by
defendants even after service of legal notice.
3. Defendants denied plaint allegation and asserted that no
agreement was executed for sale of one acre land. Trial Court framed the
issues and decreed the suit partly against respondent no.1 granting relief
of refund of Rs.20,000/- with interest of 6% per annum from 22.04.1993.
4. This appeal was preferred on the ground that Trial Court
committed error in ignoring the contents of Ex. P-6 executed on
07.04.1992 signed by all the defendants as there is no denial of signature
by defendants. Trial Court has committed illegality in holding that one
acre of land out of 4.10 acre of land could not have been sold by one
individual. It is an erroneous view that all defendants have signed and a
co-owner can sell his or her part of share even without partition. Trial
Court committed error in directing refund of Rs.20,000/- and interest of
6% per annum. Trial Court committed error in holding one acre land was
not handed over to plaintiff on the date of execution of agreement i.e
07.04.1992. There is erroneous reading of evidence and wrong application
of law by Trial Court.
5. During the pendency of the appeal, defendant No.1/respondent
No.1 has expired and defendant Nos.2 and 3/respondent Nos.2 and 3 are
LRs of defendant No.1/respondent No.1 Jaitun Bai. Only prayer of
appellant is that due to death of defendant No.1/respondent No.1 Jaitun
Bai, the decree as passed as passed by trial Court be performed by
respondent Nos.2 and 3.
6. No one appeared for respondent Nos.2 and 3 at the time of
hearing.
7. So heard the appellant.
8. Perused the record.
9. In para-13 of the judgment, trial Court has concluded that
agreement P-6 was entered between the Jaitun Bai and appellant/plaintiff
and respondent Nos.2 and 3 marked their thumb impress at Ex.P-6 but did
not order to be specifically enforced the Ex.P-6 as the land comprises in
Ex.P-6 is recorded in the joint ownership and granted the relief of refund
of Rs.20,000/- amount with interest of 6% per annum from 22.04.1993.
10. As the Jaitun Bai has expired during the pendency of appeal and
respondent Nos.2 and 3 are the LRs of respondent No.1 Jaitun Bai,
Section 146 of CPC is being referred regarding liability of respondent
No.2-Kamaluddin and No.3-Sageer Mohammed as the legal
representativies of respondent No.1-Jaitun Bai as below :-
"Save as otherwise provided by this Code or by
any law for the time being in force, where any
proceeding may be taken or application made by or
against any person then the proceeding may be taken or
the application may be made by or against any person
claiming under him."
11. Respondent No.2-Kamaluddin and No.3 Sageer Mohammed
are liable to satisfy the decree in favour of appellant, so this appeal is
partly allowed and the decree of trial Court is modified to the extent that
respondent Nos.2 and 3 shall pay Rs.20,000/- to appellant/plaintiff.
Respondent Nos.2 and 3 shall also pay 6% interest from 22.04.1993.
(GAJENDRA SINGH)
JUDGE
DPS
DHEERAJ PRATAP SINGH
2024.02.08 17:25:40 +05'30'
