Laxminarayan Bagra S/O Shri ... vs Nanagram S/O Late Shri Gopal
2023 Latest Caselaw 1403 Raj/2

[2023/RJJP/001177]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                     S.B. Civil First Appeal No. 629/2019

Laxminarayan Bagra S/o Shri Omprakash Bagra, R/o Village
Badharna Tehsil Amer, District Jaipur (Raj)
                                                             ----Appellant/Plaintiff
                                       Versus
1.       Nanagram S/o Late Shri Gopal, R/o Village Badharna
         Tehsil Amer, District Jaipur (Raj)
2.       Ramji Lal S/o Late Shri Gopal, R/o Village Badharna Tehsil
         Amer, District Jaipur (Raj)
3.       Lalaram S/o Late Shri Gopal, R/o Village Badharna Tehsil
         Amer, District Jaipur (Raj)
4.       Mst. Barji Widow Late Shri Gopal, R/o Village Badharna
         Tehsil Amer, District Jaipur (Now Deceased)
5.       Babu Lal Sharma S/o Prabhat Sharma, Aged About 60
         Years, R/o Village Badharna, Tehsil Harmada District
         Jaipur.
6.       Prabhudayal Saini S/o Shri Ganpat Ram Saini, R/o Village
         Daulatpura, Tehsil Amer, District Jaipur (Raj.)
                                                   ----Respondents-Defendants

For Appellant(s) : Mr. S. K. Gupta, Senior Counsel assisted by Anil Kumar Sharma, Adv.

Ms. Surbhi Agarwal, Adv.

For Respondent(s) : Mr. Rajendra Prasad, Senior Counsel assisted by Mr. Abhishek Pareek, Adv.

Mr. Hari Krishna Sharma, Adv.

Mr. Henang Kumawat, Adv. on behalf of Mr. Shashank Agarwal, Adv.

     HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
                         Order

ORDER RESERVED ON                            ::                     30.01.2023


ORDER PRONOUNCED ON                           ::                    03.02.2023

This Civil First Appeal under Section 96 read with Order 41

Rule 1 & 2 of CPC has been filed against the judgment & decree

dated 27.05.2019 passed by Additional District & Sessions Judge

[2023/RJJP/001177] (2 of 8) [CFA-629/2019]

No.2, Jaipur Metropolitan in Civil Suit No.27/2005 (242/2005),

whereby the suit filed by the appellant-plaintiff (for short 'the

plaintiff') has been dismissed.

Brief facts of the appeal are that plaintiff filed a civil suit for

specific performance and permanent injunction against the

respondents-defendants (for short 'the defendants') in the court

below stating that deceased Gopal was having 1/2 Share in the

land of Khasra No. 575, 576, 577, 578, 641, 644, 645, 649 to

652, 667 to 671, 674 to 680 total measuring 5.22 Hectare, and

land of Khasra No.593 measuring 0.49 situated in village

Badharna. After death of Gopal, 1/2 of 1/2 share of Gopal in the

aforesaid land was recorded in the name of defendants in revenue

record. The defendants entered into an agreement to sell dated

12.08.2004 with the plaintiff for selling their 1/4 share in the land

and received Rs.1,10,000/- in lieu thereof. Thereafter, they also

received Rs.5.00 lacs on 25.08.2004 and passed on a receipt with

regard to the same on previous agreement to sell dated

12.08.2004. The plaintiff asked the defendants to get the sale

deed registered, but the defendants gave false assurances. After

that, plaintiff sent a legal notice dated 29.12.2004 to the

defendants. On receiving the same, defendants neither got the

sale deed registered nor gave any reply to the plaintiff. Thus, the

plaintiff filed the aforesaid civil suit.

Defendants filed their written statements and denied the

averments made in the plaint and stated that on 02.08.2004 the

defendants put their signatures on the agreement for selling their

1/4 share in the land of Khasra No.593 measuring 0.49 Hectare

but plaintiff had not paid the amount at that time, so, agreement

[2023/RJJP/001177] (3 of 8) [CFA-629/2019]

to sell remained unexecuted. Then, defendants filed an FIR

against the plaintiff in Police Station Vishwakarma. On

01.09.2004, the plaintiff had given in writing in the Police Station

that he had not executed any agreement to sell on 02.08.2004 in

relation to land of Khasra No.593. Then, Police dropped the

proceedings and FR was submitted. After that, the plaintiff

cheated and created forged agreement to sell dated 12.08.2004.

On the basis of pleading of the parties, the learned trial court

framed the following issues :-

(i) Whether defendants had executed an agreement on 12.08.2004 with the plaintiff to sell their land and received the sale consideration of Rs.6,10,000/-?

(ii) Whether plaintiff was ready and willing to perform the specific performance of the contract but defendants did not perform the same. So, plaintiff is entitled to specific performance of contract dated 12.08.2004 from the defendants?

(iii) If plaintiff is not found entitled to specific performance under issue No.1, then plaintiff is entitled to get back Rs.6,10,000/- with interest @ 2% per month under the agreement to sell dated 12.08.2004?

(iv) Whether for the reasons mentioned in the written statement, so-called agreement to sell dated 12.08.2004 is forged and fabricated, thus, not executable?

(v) Whether defendants are entitled to get compensation of Rs.21,000/- from plaintiff?

(vi) Relief?

Plaintiff examined himself as PW1 and got examined PW2-

Banwari Lal and PW3-Rajkumar. He also got exhibited some

documents. Defendant-Lalaram was examined as DW1. The

[2023/RJJP/001177] (4 of 8) [CFA-629/2019]

affidavits of DW2-Ramjilal and DW3-Malaram were filed, but since

they were not cross-examined, their evidence could not be read.

Learned counsel for the plaintiff submits that learned trial

court had erred in deciding the issue No.1 to 3 against the plaintiff

because defendants had not taken any plea in their written

statements regarding inadmissibility of the stamp due to its non-

registration or insufficiently stamped. Learned counsel for the

plaintiff also submits that trial court had not framed any issue

regarding inadmissibility of the documents. Learned counsel for

the plaintiff also submits that during evidence, defendants had not

raised any objection regarding marking exhibit on so-called

agreement to sell. Learned counsel for the plaintiff also submits

that when objection regarding inadmissibility of the document was

not raised during evidence, then it would be deemed that the said

objection was waived. Learned counsel for the plaintiff also

submits that it was the duty of the trial court to impound the

agreement to sell and send it to Collector (Stamps).

Learned counsel for the plaintiff also submits that issue No.4

was to be proved by the defendants that agreement is forged one

but defendants had not produced any evidence to prove this issue.

So, it is established that so-called agreement dated 12.08.2004

was genuine. Learned counsel for the plaintiff also submits that

trial court wrongly came to the conclusion that plaintiff failed to

prove the agreement to sell. Learned counsel for the plaintiff also

submits that plaintiff and witnesses clearly proved that agreement

to sell was executed by the defendants and plaintiff had paid

Rs.6,10,000/- as a sale consideration. The plaintiff had given the

notice for specific performance but defendants had not replied the

[2023/RJJP/001177] (5 of 8) [CFA-629/2019]

same. Learned counsel for the plaintiff also submits that during

pendency of lis, defendants had sold the land to the respondent

Nos.5 and 6 (in appeal). So, sale deed executed in favour of

respondent Nos.5 and 6 be cancelled and judgment of the trial

court be set aside.

Learned counsel for the plaintiff has placed reliance upon the

following judgments : (1) Sirikonda Madhava Rao Vs. N.

Hemalatha & Ors. in Petition for Special Leave to Appeal

(C) No.14882-14883/2022 decided on 14.11.2022 and (2)

Shri Anil Vs. Shri Babu & Anr. in Writ Petition

No.112448/2017 decided on 15.12.2022.

Learned counsel for the defendants have opposed the

arguments advanced by learned counsel for the plaintiff and

submitted that it is an admitted position that agreement to sell

dated 12.08.2004 was insufficiently stamped. So, as per provision

of Rajasthan Stamps Act as well as Indian Stamps Act, the said

stamp is not enforceable, unless and until it is impounded.

Learned counsel for the defendants also submitted that trial court

while dismissing the suit filed by the plaintiff clearly observed that

plaintiff failed to prove the agreement to sell dated 12.08.2004

because defendants in their written statements clearly stated that

they had not executed any agreement on 12.08.2004. An

agreement to sell was executed between defendants and plaintiff

on 02.08.2004 for selling 1/4 share of land of Khasra No.593

Rakba 0.49 Hectare but plaintiff did not pay the amount. So,

so-called agreement was unexecuted. The plaintiff had taken the

said agreement and got changed the date from 02.08.2004 to

12.08.2004 on it and also wrote the portion M to N on page No.5

[2023/RJJP/001177] (6 of 8) [CFA-629/2019]

of Ex.1. Learned counsel for the defendants also submitted that

agreement to sell dated 12.08.2004 was notarized on 25.08.2004.

Learned counsel for the defendants also submitted that as per

evidence of plaintiff, signature and thumb impression of the

defendants from S, B, U, V of the agreement to sell were obtained

on 12.08.2004 and rest signature were obtained on 25.08.2004.

Learned counsel for the defendants also submitted that on

12.08.2004 writing was not identified by anyone. The said

agreement was not attested on 12.08.2004. Learned counsel for

the defendants also submitted that as per evidence of plaintiff,

first agreement to sell was executed on 12.08.2004 then

defendants sold the remaining land on 25.08.2004. Learned

counsel for the defendants also submitted that if defendants had

really sold the land to the plaintiff on 25.08.2004, then, plaintiff

could execute separate agreement to sell instead of writing on the

previous so-called agreement to sell dated 12.08.2004. So, trial

court rightly disbelieved the so-called agreement to sell. So,

finding of the trial court does not suffer from any illegality or

infirmity. So, appeal be dismissed.

Learned counsel for the defendants has placed reliance upon

the following judgments : (1) Bhardwaj & Ors. Vs.

Yogeshwawr Swaroop Bhatnagar & Ors. in D. B. Civil Writ

Petition Nos.15760/2015 & 6437/2013 decided on

04.09.2019 and (2) Omprakash Vs. Laxminaryan & Ors. in

Civil Appeal No.9032/2013 (Arising out of Special Leave

Petition (C) No.20721/2008 decided on 07.10.2013.

[2023/RJJP/001177] (7 of 8) [CFA-629/2019]

I have considered the arguments advanced by learned

counsel for the plaintiff as well as learned counsel for the

defendants.

It is an admitted position that so-called agreement dated

12.08.2004 is insufficiently stamped. Trial court in its judgment

clearly mentioned that plaintiff had not proved so-called

agreement to sell dated 12.08.2004. Defendants in their written

statements clearly stated that they had not executed the so-called

agreement to sell on 12.08.2004. On 02.08.2004 an agreement to

sell was purportedly executed between them for sale of land of

Khasra No.593 measuring 0.49 Hectare but plaintiff had not paid

the sale consideration and took away the agreement with him.

Plaintiff in its evidence stated that defendants sold the land to him

on 25.08.2004 and he had paid Rs.5 lacs. In my opinion, if

defendants were agreed to sell the remaining land as per the

agreement, then there was no occasion to make endorsement on

page No.5 of the previous agreement dated 12.08.2004. Plaintiff

could have executed separate agreement regarding selling of the

remaining land. Plaintiff in his evidence admitted that signature

and thumb impression of the defendants on page No.5 as S, B, U,

V was obtained on 12.08.2004 and rest of the signatures were

obtained on 25.08.2004. So-called agreement to sell was not

notorized on 12.08.2004 and it was notorized on 25.08.2004. It is

also an admitted position that signatures of the defendants as well

as witnesses were not obtained in front of Notary Public. So, in my

considered opinion, trial court rightly disbelieved the agreement to

sell (exhibit-1) because plaintiff had not proved the execution of

the so-called agreement to sell dated 12.08.2004. So, trial court

[2023/RJJP/001177] (8 of 8) [CFA-629/2019]

rightly decide the issue Nos.1 to 3 in favour of the defendants and

against the plaintiff.

Thus, present appeal being devoid of merits is liable to be

dismissed, which stands dismissed accordingly.

All the pending applications, if any, stand dismissed.

(NARENDRA SINGH DHADDHA),J

Jatin /91

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