Madhya Pradesh High Court
Shav Singh vs Jubedda Bi on 4 March, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 4 th OF MARCH, 2024
SECOND APPEAL No. 1280 of 2023
BETWEEN:-
SHAV SINGH S/O PUR SINGH RAJPOOT, AGED ABOUT 55
YEAR S , OCCUPATION: AGRICULTURE R/O VILLAGE
MALHARGARH TEHSIL ALOTE DISTT RATLAM
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI PRASANNA R. BHATNAGAR - ADVOCATE)
AND
1. JUBEDDA BI W/O MOHAMMAD HUSSAIN
LAKHARA, AGED ABOUT 58 YEARS, OCCUPATION:
HOUSEWIFE R/O ALOTE DISTT. RATLAM
(MADHYA PRADESH)
2. DILIP SINGH S/O CHANDAR SINGH RAJPOOT,
AGED ABOUT 34 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE MALHARGARH
TEHSIL ALOTE, DISTT. RATLAM (MADHYA
PRADESH)
3. STATE OF M.P. THROUGH COLLECTOR RATLAM,
DISTRICT RATLAM (MADHYA PRADESH)
.....RESPONDENTS
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This present second appeal under Section 100 of CPC has been filed by
the appellants/defendant no.1 being aggrieved by the judgment and decree dated
03.03.2023 passed by learned Additional Judge of District Judge, Alote, district
Ratlam in Regular Civil Appeal No.13/2018 affirming the judgment and decree
dated 30.11.2017 passed by the learned Additional Judge of Civil Judge, Class-
I, Alote, district Ratlam in Civil Suit No.06-A/ 2014 filed by the
respondent/plaintiff for specific performance of contract of the disputed land
has been decreed.
2. The brief facts of the case is that respondent no.1/plaintiff filed a suit
for specific performance of contract in respect of land situated at village
Malhargarh, Tehsil Alot, district Ratlam bearing survey no.257 having Rakba
0.040 hectare. As per the plaint averments, the plaintiff submitted that at village
Malhargarh, Tehsil Alot a land bearing survey no.257 having total Rakba 1.21
hectare was situated which was jointly in the name of defendants no.1 and 2. It
is further mentioned in the plaint that above land was partitioned amongst
defendants no.1 and 2 and Tej Singh and each one got 0.40 hectares of land in
their share. It is further mentioned in the plaint that on 06.02.2009, defendant
no.1 and 2 executed a joint agreement with the plaintiff for sale of their shares of
land @ Rs.37,500 per Bigah i.e. for total sale consideration of Rs.1,20,000/-. It
is further mentioned in the plaint that defendant no.2 sold his part of land to the
plaintiff but defendant no.1 refused to sell the land. As per plaint averments
various oral reminders were given to defendant for execution of the sale deed
but the sale deed was not executed, therefore, on 22.07.2013 a legal notice was
also sent but by way of reply of the legal notice, defendant no.1 refused to sell
the land despite receiving the sale consideration.
3. The defendant no.1 filed written statement and denied the plaint
averments and submitted that land was not partitioned between defendants no.1
and 2 and Tejsingh and he also denied the execution of the agreement by
alleging that the agreement prepared by the plaintiff is forged. He also denied the
factum of possession of the plaintiff on the disputed land. Defendant no.2
admitted the plaint averments in his written statement.
4. The trial Court framed issues on the basis of the aforesaid pleadings
and after recording the evidence of the parties, decreed the suit. Being aggrieved
by the aforesaid judgment and decree, the appellant/defendant no.1 filed first
appeal on 15.01.2018 which was dismissed by the impugned judgment and
decree by the first appellate Court.
5. Being aggrieved by the judgment and decree passed by the first
appellate Court, the appellant/defendant no.1 filed the present second appeal
and submitted that the judgment and decree passed by trial Court as well as the
first appellate Court are illegal and not based on proper appreciation of
evidence. It is further submitted that the trial Court as well as the first appellate
Court have failed to consider the oral and documentary evidence produced by
the appellant. The trial Court as well as the first appellate Court erred in allowing
the suit preferred by the appellant. The findings of trial Court as well as the first
appellate Court are perverse and against the evidence available on record.
Hence, it is submitted that the appeal deserves to be admitted on the substantial
questions of law proposed by the appellants.
6 . Heard learned counsel for the appellant at length and perused the
entire record of the trial Court as well as the first appellate Court with due care.
7. Learned counsel for the appellant submits that plaintiff must prove
his case by own evidence. He further submits that plaintiff did not produce any
witness or attesting witness for proving the execution of the agreement to sell,
whereas the best witnesses were available with the plaintiff, but plaintiff did not
examine any of them in the witness box. Hence, the plaint averments are not
supported with the evidence, therefore the same cannot be deemed proved. He
submitted that agreement to sell must be proved according to Section 68 of the
Evidence Act, but perusal of the trial Court record, it is found that defendant
no.2 who is joint seller of the disputed land and executed agreement to sell in
favour of respondent no.1 admitted the execution of agreement to sell. So,
when one of the joint seller of the disputed land admitted the execution of the
agreement to sell, then there is no need to examine other attesting witness of the
agreement to sell.
8. On the other hand, learned counsel for the appellant submitted that
the respondent prepared the agreement to sell forgedly and he has not signed
the agreement to sell, but in this regard, appellant was unable to prove any
evidence. He had not dared to examine the handwriting expert as witness to
prove that his signature was forged. So it is found that the trial Court as well as
the first appellate Court have not committed any error in holding that execution
of agreement to sell is not forged. So argument advanced by the learned
counsel for the appellant in this regard has no substance.
9. Learned counsel for the appellant submitted that possession of the
disputed land was not handed over to the respondent, but trial Court as well as
the first appellate Court found the possession of respondent no.1.
10. The question of possession is a matter of fact and the trial Court as
well as the first appellate Court have concurrent finding in regard to the
possession, therefore, no interference is called for in the findings of the trial
Court as well as the first appellate Court. So, the appellant has failed to prove
his possession on the disputed land, therefore, on the basis of evidence
produced by the respondent before the trial Court, the trial Court as well as the
first appellate Court have given concurrent finding that execution of agreement
to sell has been executed between the plaintiff and defendants and plaintiff is the
possession holder of the suit land.
1 1 . In the light of the aforesaid discussion, this Court is of the
considered opinion that the impugned judgment and decree passed by the trial
Court as well as the first appellate Court are well reasoned and based on due
appreciation of oral as well as documentary evidence available on record. The
findings recorded by the trial Court as well as the first appellate Court are
concurrent finding of fact. The appellant has failed to show how the findings of
fact recorded by the trial Court as well as the first appellate Court are illegal,
perverse and based on no evidence. Thus, no substantial of law arises for
consideration in the present appeal.
12. Accordingly, the present second appeal sans merit and is hereby
dismissed at admission stage for the reasons indicated above.
(HIRDESH)
JUDGE
RJ
