Lrs Of Shyam Lal vs Kailash Chander
2021 Latest Caselaw 17260 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

......

S.B. Civil First Appeal No. 463/2021

1. Legal heirs of Late Shri Shyam Lal, S/o Shri Bhanwarlal Dhobi, R/o Bhund Mohalla, Behind Karwa Chowki, Chittorgarh, Tehsil and District Chittorgarh. 1/1. Rahul S/o Late Shri Shyamlal Dhobi, aged about 28 years, R/o Behind Kotwali, Sangam Marg, Pannadhai Colony, Chittorgarh.

1/2. Divya D/o Shyamlal Dhobi, aged about 29 years, R/o Behind Kotwali, Sangam Marg, Pannadhai Colony, Chittorgarh.

1/3. Kalabai W/o Shyamlal Dhobi, aged 61 years, R/o Behind Kotwali, Sangam Marg, Pannadhai Colony, Chittorgarh.

----Defendants-Appellants Versus Kailash Chander S/o Mangilal Dhobi, R/o Shivlok Colony, Sangam Marg, Chitorgarh, Tehsil And District Chittorgarh, Rajasthan.

                                                       ----Plaintiff-Respondent


For Appellant(s)          :     Mr. Roop Kishore Rathi
For Respondent(s)         :     Mr. A.K. Babel

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

18/11/2021

Heard learned counsel for the appellants as well as learned

counsel for the respondent.

Learned counsel for the defendants-appellants stated that

defendant-late Shyamlal was brother-in-law of the plaintiff -

Kailash Chandra; in the course of business of property dealing,

one document Exb. 1 allegedly executed between plaintiff and

defendant, there is no signature of Kailash Chandra on Exb.1 and

(2 of 4) [CFA-463/2021]

that document was executed by defendant-appellant. Learned

counsel further stated that during cross-examination PW4 -

Omprakash, one of the attesting witness to that document Exb. 1

stated that agreement to sale was executed for a consideration of

Rs. 4,90,000/-; at the time of execution of document in question,

no money was given; PW4 also admitted that he do not know the

fact that who typed the document and one document was signed

by him; that document was signed by Kailash Ji and Shyamlal Ji

whereas after some questions, PW4 has admitted that he is

unable to state that where is the signature of Kailash on the Exb.

1, he do not know how much amount was given towards

consideration. Learned counsel further stated that PW1 Kailash

Chandra i.e. plaintiff-respondent also admitted during his cross-

examination that an amount of Rs. 51,000/- was given by him at

the time of execution of Exb. 1 and remaining amount was given

by him on various different dates but PW4 admitted that it was not

mentioned in Exb. 1 agreement to sale that the money was given

on different dates; PW1 also admitted that he cannot produce

receipt of the payment which was made by him before this Court

and even receipts are not available at his home; it is also admitted

by PW1 that there were one or two agreements executed between

the parties and on 07.04.2006, an amount of Rs. 1,00,000/- was

given by him. These statements of the plaintiff-respondent have

not been supported by PW4 Omprakash and he has clearly stated

that at the time of execution of document, no money was given on

07.04.2006 by the plaintiff-respondent. It is also an admitted

position that plaintiff-respondent is not in possession of the

property in question.

(3 of 4) [CFA-463/2021]

Learned counsel for the respondent made argument that

since decree of specific performance passed in favour of defendant

by learned trial court, therefore, if any interim order is passed in

favour of defendant-appellant, order may kindly be passed in

regard to payment of mesne profit as passed by co-ordinate

Bench of this Court in S.B. Civil First Appeal No.436/2019 titled as

"Sukhdev & Ors. Vs. LR's of Smt. Savitri Devi & Ors." passed on

07.09.2020 as well as in S.B. Civil First Appeal No.485/2019 titled

as "Surja Ram Vs. LR's of Lekhram & Ors." passed on 04.08.2020.

Having regard to the facts and circumstances of this Court,

particularly the fact that as per certified copy produced by learned

counsel for the appellant for Court's perusal, there is no signature

of plaintiff-respondent on that document; no dates for payment

towards total consideration has been mentioned in that document

and it is admitted by the independent witness that no

consideration was paid by plaintiff-respondent at the time of

execution of Exb. 1 and plaintiff-respondent also admitted during

cross-examination that he cannot produce the receipt before the

Court by which consideration was paid by him after execution of

the document, Exb. 1.

In view of the above, the appeal is admitted. Issue notice.

Since learned counsel Mr. A.K. Babel puts in appearance on

behalf of the sole-respondent/plaintiff. Hence, notices need not be

issued.

Send for the record.

In the meantime and till the final disposal of the suit, effect,

operation and execution of the impugned judgment and decree

dated 28.09.2021 passed by learned trial court in Civil Original

(4 of 4) [CFA-463/2021]

Suit No. 14/2010 titled as "Kailash Chandra vs. LR's of Shyamlal"

shall remain stayed.

So far as arguments made by learned counsel for the

respondent in regard grant of mesne profit during pendency of

appeal.

First of all, the facts of the present and the facts as involved

in the citations as relied upon by learned counsel for the

respondent are different to that of present case.

In present case plaintiff-respondent is not in possession of

disputed property, prima-facie, no consideration is required to be

paid by plaintiff-respondent; plaintiff-respondent are relatives.

In view of the above, if appeal filed by the defendant-

appellants fails, plaintiff-respondent is free to raise this question

at the time of final argument of appeal and if Court thinks it to be

fit and finds arguments advanced by the plaintiff-respondent

correct, appropriate order would be passed in this regard.

The stay application stands disposed of accordingly.

Let the appeal be placed in due course.

(DEVENDRA KACHHAWAHA),J 19-/Akshay/-

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