Madhya Pradesh High Court
Haji Muhammad vs Toheed Muhammad on 18 June, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:26048
1 SA-409-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 18th OF JUNE, 2025
SECOND APPEAL No. 409 of 2025
HAJI MUHAMMAD
Versus
TOHEED MUHAMMAD AND OTHERS
Appearance:
Shri Mahendra Pateria and Shri Amit Shukla - Advocate for the appellant.
Shri S. Khare - P.L. for the State/respondent 8.
ORDER
This second appeal has been preferred by the appellant/plaintiff
challenging the judgment and decree dated 30.12.2024 passed by 7th District
Judge, Damoh, in civil appeals no.21/2021 & 70/2024 reversing the
judgment and decree dated 27.08.2021 passed by 3rd Addl. Judge to the
Court of first Civil Judge Senior Division, Damoh, in RCSA no.10/2012
whereby appellant/plaintiff's suit for specific performance of agreement of
sale dated 02.02.2010 was decreed and in appeal filed by defendant 1 as well
as by defendants 5 to 7 (transferee purchasers), appellate Court has reversed
the judgment and decree of specific performance and ordered for refund of
advance sale consideration amount of Rs.1,50,000/- along with interest @
6% p.a.
2. Learned counsel for the appellant/plaintiff submits that both the
Courts below have concurrently found that the agreement of sale was
executed by defendants 1-2 and advance amount of Rs.1,50,000/- towards
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2 SA-409-2025
sale consideration was paid by him, therefore, there was no occasion
available with the first appellate Court to reverse the decree of specific
performance and grant decree of refund of advance consideration amount of
Rs.1,50,000/-. He further submits that after payment of advance
consideration of Rs.1,50,000/- the plaintiff also paid an amount of
Rs.1,70,000/- in cash and Courts below have erred in not taking care of that.
He also submits that the defendants 5-7 are not bonafide purchasers because
they purchased the suit property during pendency of suit and without taking
into consideration this aspect of the matter in its real perspective, first
appellate Court has committed illegality in reversing the judgment and 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. Apparently both the Courts below have found the agreement of sale
in question to be a proven document and have also found that an amount of
Rs.1,50,000/- was paid by plaintiff to the defendants 1-2 and did not accept
the contention of the plaintiff about payment of remaining consideration of
Rs.1,70,000/- to the defendants 1-2.
5. It is apparent from the plaint that the plaintiff himself has prayed for
decree of refund of advance consideration amount of Rs.3,20,000/- along
with interest @ 6% p.a. in the suit filed on 03.12.2012. First appellate Court
has upon due consideration of the evidence of the parties vide paragraphs 16
to 31, found that the plaintiff/appellant has not been able to prove continuous
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3 SA-409-2025
readiness and willingness to perform his part of contract from the date of
agreement till the date of decree and instead of passing decree of specific
performance passed decree of refund of consideration.
6. Upon due consideration of the material available on record and in
view of the prayer made in the plaint regarding refund of advance
consideration and further in view of the fact that the Courts below have
found that only an amount of Rs.1,50,000/- was paid by the plaintiff to the
defendants 1-2, this Court does not find any illegality in the judgment and
decree passed by first appellate Court.
7. Resultantly, in absence of any substantial question of law, this
second appeal fails and is hereby dismissed.
8. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
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