Rajasthan High Court
Ganesh And Anr vs Laddu And Ors on 9 February, 2022
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 287/2017
1. Ganesh S/o Rughnath, R/o Biharipura, Tehsil Lalsot, Distt.
Dausa (Raj.)
2. Prabhati S/o Kalyan Meena, R/o Devalda, Tehsil Lalsot,
Distt. Dausa (Raj.)
----Appellants/Plaintiffs
Versus
1. Laddu S/o Prabhu, R/o Biharipura, Tehsil Lalsot, Distt.
Dausa (Raj.)
2. Radha Krishna S/o Shriya, R/o Biharipura, Tehsil Lalsot,
Distt. Dausa (Raj.)
3. State Of Rajasthan Through District Collector, Dausa.
4. Sub-Registrar, Lalsot, Tehsil Office, Lalsot, Distt. Dausa
(Raj.)
----Respondents
For Appellant(s) : Mr. Lokesh Sharma, Advocate
For Respondent(s) : Mrs. Sudesh Kasana, Advocate
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment
09/02/2022
This Civil Second Appeal under Section 100 CPC has
been filed by the appellants-plaintiffs (for short, 'the plaintiffs')
against the judgment and decree dated 25.4.2017 passed by Addl.
District Judge, Lalsot, Distt. Dausa (for short, 'the first appellate
court') in Civil Regular Appeal No. 24/2016, whereby the first
appellate court allowed the appeal filed by the respondent-
defendant no.1 (for short, 'the defendant') and set-aside the
judgment and decree dated 14.10.2016 passed by Senior Civil
Judge, Lalsot, Distt. Dausa (for short, 'the trial court') in Case No.
(2 of 5) [CSA-287/2017]
127/2012 (69/2006) decreeing the plaintiffs' suit for specific
performance of the agreement and permanent injunction.
Facts of the case are that the plaintiffs filed a suit for
specific performance of the contract and permanent injunction
against the defendants, wherein it was averred that the
defendants no. 1 and 2 are having equal half share in land bearing
khasra no. 71/1 (amended khasra no. 165/71) admeasuring 19
bigha 11 biswa situated in village Biharipura, Tehsil Lalsot, Distt.
Dausa. The defendants entered into an agreement to sell dated
18.4.1988 with the plaintiffs for selling one bigha of land out of
the aforesaid land in a sale consideration of Rs. 15,000/- and in
part performance thereof, the defendants received the entire sale
consideration and handed over possession of the suit land to the
plaintiffs. Since then the plaintiffs are in continuous possession of
the suit land and cultivating the same. The plaintiffs are ready and
willing to perform their part of contract. When the plaintiffs asked
the defendants for execution and registration of the sale deed, the
defendants made false assurances, but subsequently the
defendant Radha Krishna sold the entire land of his share in the
land bearing khasra no. 71/1 (amended khasra no. 165/71) to
other persons through a registered sale deed.
The defendant no. 1 Laddu filed written statement,
wherein it was pleaded that name of Radha Krishna S/o Shriya
was wrongly recorded in the Jamabandi, whereas Radha Krishna
had no share in the land bearing Khasra No. 71/1. He denied to
have sold one bigha land to the plaintiffs in a sale consideration of
Rs. 15,000/-. It was also averred that neither an agreement to sell
was executed by him with regard to the suit property nor
possession of one bigha of land was given to the plaintiffs. It was
(3 of 5) [CSA-287/2017]
also averred that the defendant no.1 is solely in possession of the
suit property and cultivating the same. It was further pleaded that
either the defendant no.2 Radha Krishna or the plaintiffs have no
concern with the suit property because defendant Radha Krishna
had already gone in adoption of Mulya Meena and thereafter his
rights in the suit property were extinguished.
The defendant no.2 Radha Krishna also filed written
statement.
On the basis of pleadings of the parties, necessary
issues were framed and thereafter evidence was led. After hearing
the arguments, the trial court vide its judgment and decree dated
14.10.2016 decreed the plaintiffs' suit. Being aggrieved, the
defendant no.1 Laddu filed an appeal before the first appellate
court, which came to be allowed vide judgment dated 25.4.2017
and accordingly the judgment and decree dated 14.10.2016
passed by the trial court was set-aside. Hence, this second appeal.
Learned counsel for the plaintiffs submits that the
agreement to sell dated 18.4.1988 was duly proved by the
plaintiffs. In this regard, Ishaq Mohammad, scriber of the
agreement to sell dated 18.4.1988 was produced, who proved the
same. It was wrongly held by the first appellate court that the
agreement to sell dated 18.4.1988 was not proved. In this regard,
first appellate court wrongly discarded the evidence of Ishak
Mohammad. It is submitted that when the scriber of the document
was produced, there was no requirement to produce attesting
witnesses of the document. The judgment dated 25.4.2017 passed
by the first appellate court is based on misreading and non
reading of the material evidence on record, therefore, this second
appeal filed by the plaintiffs deserves to be admitted.
(4 of 5) [CSA-287/2017]
On the other hand, learned counsel for the defendants
submits that the alleged agreement to sell dated 18.4.1988 was
forged and fabricated and the same was never executed by
defendant no.1. No attesting witness was produced to prove the
alleged agreement to sell. The first appellate court has rightly held
that the alleged agreement to sell dated 18.4.1988 has not been
duly proved. The finding of fact recorded by the first appellate
court is based on proper appreciation of evidence, hence in the
second appeal no interference therewith is required by this Court.
Heard. Considered.
From the written statement filed by the defendant
no.1 , it is evident that he denied execution of alleged agreement
to sell dated 18.4.1988. Ishak Mohammad, scriber of the
agreement to sell dated 18.4.1988 in his cross-examination
categorically admitted that no money transaction took place
before him and he did not know Laddu, Prabhu, Radha Krishna
and Shriya. Although, later on he stated that it is wrong to say
that he did not know Radha Kishan and Laddu, but it is immaterial
when earlier he admitted that he did not know Laddu, Prabhu,
Radha Krishna and Shriya. Therefore, in these circumstances, first
appellate court was right in holding that one of the attesting
witnesses should have been produced by the plaintiffs to prove the
purported agreement to sell dated 18.4.1988, but the plaintiffs
failed to do so.
It is also evident that the suit was filed on 26.6.2006,
whereas part of the suit land had already been sold by defendant
no. 2 to other persons i.e. before filing of the suit.
There is a finding of fact of first appellate court, which
is based on proper appreciation of evidence and material on
(5 of 5) [CSA-287/2017]
record. No question of law much less substantial question of law is
involved in this appeal. For this reason, this second appeal is liable
to be dismissed, which stands dismissed accordingly.
Consequent upon the dismissal of the appeal, interim
order, if any, stands vacated and stay application and all pending
applications, if any, also stand disposed of accordingly.
(PRAKASH GUPTA),J
DK/6
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