Jitendra vs Sanjay
2024 Latest Caselaw 5281 MP

Madhya Pradesh High Court

Jitendra vs Sanjay on 21 February, 2024

Author: Anuradha Shukla

Bench: Anuradha Shukla

                                 1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                   ON THE 21 st OF FEBRUARY, 2024
                   SECOND APPEAL No. 912 of 2021

BETWEEN:-
JITENDRA, S/O SHRI DHUNNA LAL SHRIWAS, AGED
ABOUT 39 YEARS, R/O GANESH SHANKAR VIDYARTHI
WARD, HARDA, TEHSIL AND DISTRICT HARDA
(MADHYA PRADESH)

                                                             .....APPELLANT
(BY SHRI SANJAY PATEL - ADVOCATE)

AND
SANJAY, S/O SHRI SOORAJ PRASAD JANGRE, AGED
ABOUT 48 YEARS, R/O IN FRONT OF NARMADA
MANDIR, GANESH SHANKAR VIDYARTHI WARD,
TEHSIL AND DISTRICT HARDA (MADHYA PRADESH)

                                                            .....RESPONDENT
(BY SHRI GAURANSH BHURRAK - ADVOCATE)

      Reserved    on : 19.02.2024
      Pronounced on : 21.02.2024

      This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
                                  ORDER

This appeal has been preferred to assail the impugned judgment and decree passed on 3.2.2021 by District Judge, Harda, in RCA No.3/2020 affirming the judgment and decree of Third Civil Judge, Class I, Harda, dated 27.8.2019 by which the civil suit RCSA No.75/2017 filed by appellant/plaintiff was dismissed.

2. The appellant shall hereinafter be referred to as "plaintiff" and respondent as "defendant".

3. Brief facts involved in the case are that the plaintiff is in possession of suit property, which is a shop situated on Harda-Indore Road; he filed a suit for specific performance of contract, which was allegedly executed in his favour on 17.5.2005 by defendant against a consideration of Rs.1,50,000/-; incidentally, this suit was filed in the year 2017; the plaintiff claimed that against the consideration of Rs.1,50,000/-, he paid Rs.20,000/- to the defendant and for this, plaintiff took a loan from J. K. Finance & Investments; it is also claimed that the defendant, with an object to grab the property, sent a false notice to the

plaintiff on 22.2.2016 asking the plaintiff to vacate the suit shop; it was wrongly claimed in this notice that plaintiff was the tenant of defendant in this suit property; the relief of specific performance of contract was, therefore, prayed in the suit; defendant contested the suit by claiming that the alleged agreement to sell is a fabricated document and he never executed any such document in favour of plaintiff and, according to him, plaintiff was his tenant; after a suit filed for eviction against plaintiff, a false case for specific performance of contract was filed by the plaintiff; it was pleaded in written statement that the questioned agreement to sell should be sent for examination to a handwriting expert. It was, therefore, requested that the suit should be dismissed with costs. The learned trial court framed total six issues in the matter and recorded the evidence of both the sides; appellant examined total four witnesses, while defendant examined only himself as a witness; documents of Ex.P-1 to P-20 were produced in evidence; the trial court dismissed the suit holding that the execution of alleged agreement to sell dated 17.5.2005 and payment of Rs.20,000/- by plaintiff in consideration of purchase money were not proved;

under issue nos.3 and 4, it was held that the factum of readiness and willingness on the part of plaintiff and negligence on the part of defendant have also not been proved. The appellate court in first appeal confirmed the judgment and decree of dismissal of civil suit.

4. The grounds raised in this second appeal are that the findings given by the courts below regarding dismissal of civil suit are contrary to facts and law; it was falsely claimed by the defendant that the plaintiff was his tenant; this claim was taken up only after the execution of agreement to sell with a dishonest object to avoid the liability under the agreement to sell; findings given under the issues framed by trial court are perverse; plaintiff's witnesses, namely plaintiff himself (P.W.1) and Mohit (P.W.3) have very categorically proved the execution of agreement to sell and no credible evidence was produced in rebuttal by the defendant. It is, therefore, prayed that on the proposed substantial questions of law, this second appeal be admitted and decided in favour of plaintiff.

5. Arguments of both the parties have been heard on admission and the records are perused.

6. The plaintiff has relied upon the agreement to sell, which was allegedly executed on 17.5.2005 in his favour by defendant. The defendant has challenged the execution of this document in his written statement by claiming

that it is a fabricated document and for this reason, he even requested in special plea that the document should be examined through Government handwriting expert. Thus, the execution of alleged sale-deed, marked as Ex.P-1, was under

serious challenge in the civil suit. Interestingly, despite serious questions raised about the genuineness of this document, plaintiff has failed to prove the

signature of defendant on this document through any handwriting expert. He chose not to place the document for handwriting expert opinion. It may be argued here that the defendant should have got the document examined through handwriting expert, but in the light of categorical denial of defendant of his signature on the document, it was for the plaintiff to get the document proved and then alone the burden could have shifted upon defendant to contest the genuineness of the document.

7 . During the cross-examination of plaintiff, defendant raised the questions on purchase of stamp papers and the proceeding of notarizing the document. It has been carefully observed by the courts below that the stamp vendor, from whom this stamp paper was purchased, was not examined in evidence and the register of Notary to prove the fact of notarization of document was cryptically withheld purposely. This court finds no reason to reassess the evidence and also the findings based on proper appreciation of this evidence.

8. Plaintiff has relied upon a document, marked as Ex.P-4, which is a draft sale-deed and he claims that this draft was provided to him by the defendant. Admittedly, this draft does not bear the signature of defendant and the handwriting available on that draft has not been submitted to the handwriting expert opinion to prove that the same was written under the hand of defendant.

9. Plaintiff has claimed that he was never a tenant of defendant and to avoid his liability under the agreement to sell, defendant filed a false suit for eviction against the plaintiff. Ex.P-3 is the notice received by plaintiff regarding the termination of tenancy, demand of arrears of rent and possession of suit property. This notice was issued on 22.2.2016 and admittedly it was received by the plaintiff from whose possession it has been produced in evidence. Ex.P-

17 is the reply to that notice and it is dated 17.3.2016. Ex.P-20 is the application filed under Section 13(6) of the Madhya Pradesh Accommodation Control Act by defendant in the eviction suit. All these documents suggest that the eviction suit was filed somewhere in the year 2016 and plaintiff came to know the stand of defendant regarding the status of plaintiff as a tenant. Strangely, plaintiff took more than a year to file the civil suit for specific performance of contract since the receipt of notice of Ex.P-2. It also needs to be mentioned here that the alleged agreement to sell was executed in the year 2005 and plaintiff did not take any initiative for almost 12 years to seek the specific performance of alleged agreement. This reflects that plaintiff himself was not interested in seeking any relief on the basis of this agreement, the execution of which he has not even been able to prove in the present suit.

10. Admittedly, the plaintiff is in the possession of suit property and the alleged agreement to sell, marked as Ex.P-1, does not state that the plaintiff was given possession of the suit property under it. In the absence of any fact about delivery of possession in this document, it is plain and simple that the suit property was otherwise in possession of plaintiff. and the defence taken here about the tenancy of plaintiff appears to be more probable. The institution of suit for eviction prior to the institution of present suit also strengthens this preponderance of probability.

11. The receipts of Ex.P-5 to P-15 have also been relied upon by the plaintiff to show that he had taken loan from the finance company to pay consideration amount, but interestingly these receipts are of the year 2005, while the execution of alleged agreement to sell, marked as Ex.P-1, is dated 17.5.2005. Therefore, receipts under consideration seem to have no connection

with the execution of Ex.P-1.

12. In the light of this discussion, the second appeal does not deserve to be admitted on any substantial question of law and is accordingly dismissed in limine.

13. Let the records of the courts below be sent back along with a copy of this order for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Date: 2024.02.22 16:24:27 +05'30'