Madhya Pradesh High Court
Geetabai vs Chandrashekhar on 6 May, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 6th OF MAY, 2024
SECOND APPEAL No. 2483 of 2023
BETWEEN:-
1. GEETABAI W/O LATE MOHANLAL SOLANKI,
AGED ABOUT 58 YEARS, HATPIPLIYA, DISTRICT
DEWAS (MADHYA PRADESH)
2. YOGESH KUMAR S/O MOHANLAL SOLANKI,
AGED ABOUT 28 YEARS, HATPIPLIYA, DIST.
DEWAS (MADHYA PRADESH)
.....APPELLANT
(BY SHRI MOHAN SHARMA - ADVOCATE)
AND
CHANDRASHEKHAR S/O KHEMCHANDRA TANWAR
HATPIPLIYA, DISTRICT DEWAS (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI NEERAJ KUMAR SONI - ADVOCATE)
--------------------------------------------------------------------------------------------
This appeal coming on for hearing this day, the court passed the
following:
ORDER
This present second appeal under Section 100 of CPC has been filed by
the defendants/appellants being aggrieved by the judgment and decree dated
28.08.2023 passed by learned First District Judge, Bagli, district Dewas in
Regular Civil Appeal No.10/2023 whereby the learned First appellate Court
upheld the judgment and decree dated 30.01.2023 passed by the learned Ist
Civil Judge, Senior Division, Bagli, District Dewas in Civil Suit No.45-A/2022
whereby the suit preferred for specific performance of the contract has been
decreed.
2. The brief facts of the case is that on 14.10.2019, the respondent/plaintiff
had filed a civil suit for specific performance of the contract in respect to plot
admeasuring 2000 Sq.ft forming part of Survey No.183/2/Min-1/Min-23 Part,
Survey No.635/6/Min-1/Min-2 Part and Survey No.943/1/Min-1/Min-12,
Survey No.1944/1 situated at Village Hatpipliya, Tehsil Hatpipliya, district
Dewas (hereinafter referred to as "Suit Property"). The defendants no.1 and 2
are mother and son in relation and one Pradeep S/o Mohanlal is also son of
defendant no.1 and brother of defendant no.2. It is further stated that one
criminal case no.113/2017 of cheque bouncing of amount of Rs.3 lacs was
pending against Pradeep in the Court of Bagli in which he was in jail and one
execution case no.01/2019 was also pending against Pradeep at instance of
Mukesh S/o Bherulal Rathore for an amount of Rs.5,28,950/-.
3. It is pleaded in the plaint that defendants want to get their son and
brother released from judicial custody and both the defendants had appeared in
the major Lok Adalat on 09.03.2019. With the consent of Pradeep, both the
defendants had taken liability of repayment of cheque amount and also the
amount in the case of execution proceedings and agreed to sell the suit property
on the same date and an agreement Ex.P-7 was also entered into force. The
defendants agreed to pay the debt of Pradeep and in view thereof agreed to sell
the suit property. On 09.03.2019, both the defendants are said to have filed the
compromise in the case of Pradeep and also executed the sale agreement.
Thereafter, the plaintiff approached the defendants to execute the sale deed and
they denied therefore, the plaintiff filed suit for specific performance against
the appellants.
4. The appellants filed written statement and pleaded that by way of
coercion and fraud agreement was executed and there is no liability of the
defendants to execute the sale deed.
5. On the basis of the averments of the plaint, the trial Court framed issues
and after recording the evidence of the parties, decreed the suit. Being
aggrieved by the aforesaid judgment and decree, the appellants/defendants
filed first appeal before the first appellate Court and the first appellate Court
dismissed the appeal by affirming the judgment and decree passed by the trial
Court.
6. Being aggrieved by the judgment and decree passed by the first appellate
Court, the appellants/defendants 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 appellants. The
trial Court as well as the first appellate Court erred in allowing the suit
preferred by the respondent/plaintiff. 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 appellant.
7. Heard learned counsel for the parties at length and perused the entire record
of the trial Court as well as the first appellate Court with due care.
8. Learned counsel for the appellants argued that the circumstances in which
the agreement to sell was executed must be seen. He submitted that defendants
are illiterate persons and they are not party in the criminal case and in
execution proceedings. So they are not liable to pay the cheque amount. He
further submitted that agreement to sell is not registered. He relied on the
judgment in the case of Avinash Kumar Chauhan Vs. Vijay Krishna
Mishra (2009) 2 SCC 532 and Vimlesh Kumari Kulshresha Vs.
Sambhajirao and another (2008) 5 SCC 58.
9. After hearing the learned counsel for the parties it is found that plaintiff
filed civil suit for specific performance against the appellants/defendants and
pleaded that defendants executed agreement to sell Ex.P-7 in regard to the suit
property. It is undisputed that son and brother of the defendants were in jail in
cheque bouncing case and one execution proceedings was pending before the
executing Court for recovery of Rs.5,28,950/-. Perusal of the trial Court record
and document Ex.P-1, P-2, P-3 and P-7, it is clear that brother and mother of
Pradeep who was in jail in cheque bouncing case have agreed to pay debt
amount and cheque amount in favour of the complainant in criminal case and
decree holder in execution case and plaintiff/respondent agreed to pay such
amount and entered into agreement to sell vide Ex.P-7.
10. From perusal of the trial Court record and the evidence adduced by the
plaintiff and defendants in the considered opinion of this Court, in the trial
Court the plaintiff was able to prove his case and trial Court as well as first
appellate Court on the basis of the documents filed by both the parties and the
evidence adduced before the trial Court as well as the first appellate Court has
given concurrent finding that respondent/plaintiff has been able to prove his
case.
11. 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 findings of fact. The appellants have 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 is devoid of merit and is hereby
dismissed.
(HIRDESH)
JUDGE
RJ
