Madhya Pradesh High Court
Mahesh Prasad vs Rewati Prasad on 2 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 2 nd OF MAY, 2024
SECOND APPEAL No. 1445 of 2020
BETWEEN:-
MAHESH PRASAD S/O BUDDHU RAJAK, CASTE DHOBI,
AGED ABOUT 62 YEARS, R/O VILLAGE SILGI TEH. AND
DISTT. MANDLA MP PRESENTLY R/O OPP. MANDLA
THANA BEHIND AYURVEDIC HOSPITAL MANDLA TEH.
DISTT. MANDLA MP (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ARPAN SHRIVASTAVA - ADVOCATE)
AND
1. REWATI PRASAD S/O LATE CHHIDILAL
CHAKRAVARTY, AGED ABOUT 47 YEARS, CASTE:
KUMHAR R/O VILLAGE SAJPANI POST AND TEH.
DHANORA DISTT. SEONI (MADHYA PRADESH)
2. YASHODA BAI W/O RAMSAHAY PRAJAPATI,
CASTE KUMHAR, AGED ABOUT 57 YEARS, R/O
VILLAGE SAJPANI POST AND TEH. DHANORA
DISTT. SEONI (MADHYA PRADESH)
3. RAMKUMAR BAI W/O KASHIRAM
CHAKRAWARTY CASTE - KUMHAR, R/O VILLAGE
TIKARWARA POST THARKA TEH. AND DISTT.
MANDLA (MADHYA PRADESH)
4. STATE OF MADHYA PRADESH THROUGH THE
C O L L E C T O R DISTT.MANDLA (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI J. L. SONI - ADVOCATE FOR RESPONDENT NO.1)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Heard on admission.
2. The facts giving rise to this litigation is that the basic case of the
respondents/plaintiffs before the Trial Court was that Chhidilal has purchased
the disputed land survey no.809/510 ad measuring 0.250 on 05.06.1968 form
the Kamli for Rs.400. After the death of Chhidilal, the land was mutated in the
name of the plaintiffs. Thus, the plaintiffs/respondents were the owner of the
land and were residing in Village - Sajpani for last four years and his sisters
were residing at their in laws home i.e. Sajpani and Tikarwada. As the disputed
land was lying vacant at that time, when the plaintiff no.1 returned to his village
in June, 2012 he found that defendant has taken the possession over the land,
he(plaintiff) requested to deliver the possession but the defendant denied,
hence he filed suit for delivery of possession and mean profit.
3. In that suit the defendant- Mahesh filed written statement and denied
the plaint averments. He filed counter claim on the ground that the disputed land
was the self acquired property of Chhidilal (father of the plaintiffs) and on
22.04.1982, Chhidilal offered the land for sale on consideration amount of
Rs.1330, and on that amount, agreement to sale was executed by Chhidilal in
defendant/appellant's favour and received consideration amount i.e.Rs.850/-.
On that time the registered sale deed can be executed only on the permission of
the Collector, hence at that time registered sale deed was not executed, but it
was agreed that seller will get the permission from the Collector and when the
sale deed was executed the rest of the consideration amount i.e.Rs.500/- shall
be paid to the seller and the possession of the disputed land was handed over
to the defendant. The defendant was ready and willing to perform his part of the
contract but permission form the Collector was not obtained by the plaintiffs
and sale deed was executed in his favour since then he is in possession over
that disputed land and he has developed the land and make it fertile, then
plaintiffs filed this suit with the malafide intention.
4. The counter claim was replied by the plaintiffs.
5. The Trial Court framed the issues and recorded the evidence of the
parties. After hearing learned counsel for the parties decreed the suit in favour
of the plaintiffs/respondents and dismissed the counter claim.
6. The first appellate Court dismissed the appeal filed by the appellant
and affirm the decree passed by the Trial Court, hence this appeal is filed.
7. Learned counsel for the appellant has submitted that it is clear from
Exhibit P/1 that the land was purchased by Chhidilal and thus, the disputed
property was the self acquired property of Chhidilal. Chhidilal has executed
agreement to sale (Ex.D/1) and the whole consideration of the sale was agreed
for Rs.1330 out of that, Rs.830 were paid to the seller on the date of the
agreement i.e. 22.04.1982, only Rs.500 was remain to be paid and possession
was delivered to the purchaser. It was agreed that the seller will file an
application before the Collector to get the permission of transfer the land. After
this agreement since 22.04.1982, he(defendant) was in possession and he was
ready and willing to perform his part, hence the Trial Court as well as First
Appellate Court has wrongly dismissed the counter claims. He was in the
constant possession.
8. On this point that the defendant/appellant was ready and willing, he
has orally stated that he is ready and willing to perform his part to but he has
never issue the notice to the seller since 22.04.1982 till the suit was filed by the
plaintiff i.e. on 25.03.2013. Thus near about more than 31 years, the purchaser
has not asked the seller to perform his part of the contract and get the said
permission from the Collector to transfer the land in his favour. After the death
of original seller, no notice was served on plaintiff and has not pleaded that he
requested the plaintiff to perform her part of contract. It is thus clear that the
purchaser himself was not ready and willing to perform his part of the contract.
9. The above fact has been discussed by the Trial Court from para
no.43 to 54 of its judgment. The First Appellate Court has also discussed the
above fact in impugned judgment.
10. The Trial Court has considered the evidence of the
defendant/appellant and his witness-Pancham that the defendant/appellant was
farming the land on the basis of Adhiya-Batai but when the land was
transferred in the favour of defendants since 1982, not a single document has
been produce by the defendant/appellant in which his name is entered as a
possession holder and the plaintiff's case is that the defendant has taken the
possession before 2-3 years before filing of the suit.
11. Thus, the Trial Court as well as First Appellate Court have
considered the defence/counter claim of the appellant/defendant and after an
elaborate discussion the Trial Court and First Appellate Court found that the
appellant never show his readiness and willingness as per the requirement of
Section 16(c) of the Specific Relief Act and his possession over the land since
22.04.1982 is also not proved.
12. The finding of both the courts regarding the limitation cannot hold to
be perverse as the seller in his life time has not executed the sale deed and after
his death his legal heirs has also not executed the deed. By the conduct
impliedly they have denied to perform the contract. The suit was filed as
counter claim after 31 years of the agreement.
13. Defendant/appellant has not taken the defence of the part
performance under Section 53(a) of the Transfer of Property Act, hence no
substantial question is involved.
14. Hence the appeal sans merits and dismissed in limine.
15. Let a copy of this order as well as records of trial Court as well as
First Appellate Court be returned back.
16. Record of this appeal be consigned to the record room.
(DEVNARAYAN MISHRA)
JUDGE
VPA
