Madhya Pradesh High Court
Pritam Ashwani vs Om Prakash Raichandani on 18 August, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:38777
1 SA-1419-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 18 th OF AUGUST, 2025
SECOND APPEAL No. 1419 of 2025
PRITAM ASHWANI
Versus
OM PRAKASH RAICHANDANI AND OTHERS
Appearance:
Shri Sanjay K Agrawal - Senior Advocate assisted by Shri Anas Hasan
Khan - Advocate appellant.
ORDER
This second appeal has been preferred by the appellant/plaintiff challenging
the judgment and decree dated 24.04.2025 passed by 3rd Addl. Judge to the Court
of 1st District Judge, Bhopal in RCA no.59/2025 affirming the judgment and
decree dated 31.01.2005 passed by 18th Civil Judge Senior Division, Bhopal in
RCSA no.310/2022, whereby both the Courts below have concurrently dismissed
the suit for specific performance of an agreement of sale dated 25.12.2019
(Ex.P/1).
2. Learned senior counsel for the appellant/plaintiff submits that by way of
agreement dated 25.12.2019 (Ex.P/1), the defendant 1 entered into an agreement
to sell his house to the plaintiff and on the date of agreement itself entire amount
was paid by the plaintiff to the defendant 1 and in turn, the defendant 1 also
delivered possession to the plaintiff of the house, however, after executing
agreement of sale it was agreed that whenever the plaintiff wants the sale deed
shall be executed in his favour. He submits that just contrary to the terms and
conditions of the agreement, the defendant 1 illegally sold the house to defendant
NEUTRAL CITATION NO. 2025:MPHC-JBP:38777
2 SA-1419-2025
2 vide registered sale deed dated 28.10.2021 and pursuant thereto the defendant 2
dispossessed the plaintiff from the house, resultantly the plaintiff instituted the suit
on 15.03.2022 seeking specific performance of agreement of sale and Courts
below merely on the premise that there is no mention of sale consideration in the
agreement, committed an illegality in dismissing the suit, whereas passing of sale
consideration has been admitted by the defendant 1 in his oral testimony by
saying that he received an amount of Rs.50 Lacs (Rs. Fifty lacs) from the plaintiff
and lateron, he returned an amount of Rs.20 Lacs (Rs. Twenty lacs) and an amount
of Rs.30 Lacs (Rs. Thirty lacs) is remaining to be paid to the plaintiff. He also
submits that since on the date of agreement itself all the title documents were
handed over by the defendant 1 to the plaintiff and the same have been produced
before the trial Court by the plaintiff himself, therefore, it should have been
presumed that in fact the agreement of sale was executed by defendant 1 in favour
of the plaintiff. With this background, he submits that the Courts below ought to
have granted decree of specific performance. With these submissions, he prays for
admission of the second appeal.
3. Heard learned counsel for the appellant/plaintiff and perused the record.
4. Undisputedly, the agreement of sale (Ex.P/1) does not mention as to
what was the sale consideration, which is necessary ingredient of sale as defined
in Section 54 of the Transfer of Property Act, 1882. Although, in the plaint it has
been mentioned that sale consideration was fixed at Rs.35 Lacs (Rs. Thirty Five
lacs), but in absence of any recital in the agreement of sale about consideration,
the same cannot be relied upon and even the alleged admission made by defendant
1 regarding receipt of sale consideration of Rs.50 Lacs (Rs. Fifty lacs), cannot be
considered as a consideration of sale for passing decree of specific performance.
NEUTRAL CITATION NO. 2025:MPHC-JBP:38777
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Both the Courts below have considered the aforesaid aspect of the matter and
refused to exercise discretion of granting decree of specific performance.
5. Although, the plaintiff has come with the case that on the date of
execution of agreement of sale, the plaintiff was delivered possession, but upon
due consideration of the oral and documentary evidence available on record and
coupled with the order passed in the proceedings of Section 145 Cr.P.C, Courts
below have concluded that the plaintiff was not delivered possession in pursuance
of the agreement of sale.
6. It is well known fact that in a suit for specific performance, the property
as well as consideration of sale should be specific, but here in the present case, no
consideration of sale is mentioned in the agreement, which makes the agreement
to be illegal and doubtful.
7. In view of the aforesaid discussion and upon due consideration of the
entire material available on record, this Court does not find any illegality in the
concurrent judgment and decree passed by Courts below dismissing the suit for
specific performance.
8. Resultantly, in absence of any substantial question of law, this second
appeal fails and is hereby dismissed.
9. Pending application(s), if any, shall also stand disposed of.
(DWARKA DHISH BANSAL)
JUDGE
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