Rajasthan High Court
Munnabhai S/O W/O Iliyas Mohammad vs Abdul Aziz S/O Late Shri Jamal Khan ... on 13 February, 2023
Bench: Mahendar Kumar Goyal
[2023/RJJP/002538]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 306/2019
Munnabai S/o W/o Iliyas Mohammad, R/o Hajipura @ Tapria,
Ward No. 16,kasba Tehsil Todaraisingh, Todaraisingh, District
Tonk
----Appellant/Plaintiff
Versus
1. Abdul Aziz S/o Late Shri Jamal Khan, R/o Deshwali
Mohalla, Todaraisingh
2. Mt. Hura Wd/o Late Jamal Khan, R/o Deshwali Mohalla,
Todaraisingh (Deceased)
3. Mst. Pana D/o Late Jamal Khan W/o Asraf Khan Bhati, R/o
Devgaon, Tehsil Kekri District Ajmer
4. Mst. Jamila D/o Late Jamal Khan W/o Noor Khan, R/o
Mohalla Nagoria, Todaraisingh
5. Mst. Fata D/o Jamal Khan W/o Late Abdul Razzak, R/o
Village Sarwar, Near Bada Bas Masjid, Sarwar, Tehsil
Sarwar, District Ajmer
6. State Of Rajasthan Through District Collcector, Tonk
7. Tehsil Land Record, Tehsil Todaraisingh District Tonk
Rajasthan
----Respondents/Defendants
For Appellant(s) : Ms. Priyanka Chouhan for
Mr. Rakesh Kumar
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment
13/02/2023
This civil second appeal is preferred against the judgment
and decree dated 03.05.2019 passed by the learned Additional
District Judge Malpura District Tonk (for brevity, "the learned
Appellate Court") in CRA No.3/2013 whereby, while dismissing the
[2023/RJJP/002538] (2 of 5) [CSA-306/2019]
appeal, the judgment and decree dated 31.10.2012 passed by the
learned Civil Judge (Junior Division) Todaraisingh, District Tonk
(for brevity, "the learned trial Court") in Civil Suit No.2/2005
dismissing the suit filed by the appellant/plaintiff (for brevity,
"plaintiff") for specific performance of the agreement and
declaration, has been affirmed.
The relevant facts in brief are that the plaintiff filed a suit
against the respondents/defendants (for brevity, "defendants")
stating therein that Late Jamal Khan, the predecessor-in-interest
of the defendants, have executed an agreement to sell dated
11.09.1987 in her favour of his agricultural land comprising of
Khasra No.4505 measuring 0.19 hectare and Khasra No.4506
measuring 0.54 hectare Ward No.16, Village Todaraisingh, District
Tonk and its possession was also handed over to her. It was
averred that despite her repeated request, Late Shri Jamal Khan
did not execute the sale deed of the subject land in her favour and
after his death, the defendants No. 1 to 5, who are bound by the
terms of the agreement dated 11.09.1987, instead of executing
the sale deed, are trying to interfere in her use and occupation of
the subject land. Thus a decree of declaration and specific
performance of the agreement was prayed for.
The defendants in their written statement denied execution
of any agreement to sell dated 11.09.1987 by Late Shri Jamal
Khan in plaintiff's favour. It was stated that the subject land was
not under exclusive Khatedari of Late Jamal Khan and he had no
right to transfer it at the relevant time. It was further submitted
that the subject land was under their exclusive possession. It was,
therefore, prayed that the suit be dismissed.
[2023/RJJP/002538] (3 of 5) [CSA-306/2019]
Seven Issues were settled by the learned trial Court on the
basis of pleadings of the parties. After recording of the evidence of
the respective parties, the suit was dismissed by the learned trial
Court vide its judgment and decree dated 31.10.2012 which has
been affirmed by the learned Appellate Court vide its judgment
and decree dated 03.05.2019.
Assailing the judgment and decree, learned counsel for the
plaintiff submits that while dismissing the suit, the learned Court
did not appreciate that she was able to establish execution of the
agreement to sell dated 11.09.1987 by Late Shri Jamal Khan, the
predecessor-in-interest of the defendants in her favour. She,
therefore, prays that this civil second appeal be allowed, the
judgment and decree dated 03.05.2019 be quashed and set aside
and the suit filed by the her be decreed.
Heard. Considered.
A perusal of the findings of the learned Court reveals that on
the basis of oral as well as documentary evidence on record, it has
been held that the plaintiff could not establish that after partition
of the subject property amongst the co-sharer, on 11.09.1987, the
date on which the sale agreement was allegedly executed by Late
Shri Jamal Khan, the subject property was under his exclusive
Khatedari and possession; rather, it has been held that it fell in his
exclusive Khatedari on 05.07.1989. It is further held that neither
it could be established that she had handed over a sum of
Rs.3000/- in cash towards sale consideration to Late Shri Jamal
Khan nor, that she received possession of the subject property
under the sale agreement. While, the plaintiff as PW-1 has failed
to identify signature of Late Shri Jamal Khan on the sale
[2023/RJJP/002538] (4 of 5) [CSA-306/2019]
agreement, appreciating the testimony of Shri Ram Pal Kurmi
(PW-2), the deed writer and Shri Abdul Rasid (PW-3), attesting
witness to the sale agreement and brother of the plaintiff, it has
been held that neither the execution of the sale agreement is
proved nor, it is proved that sale consideration exchanged hands.
A categorical finding has been recorded by the learned trial Court
that while no documentary evidence was submitted by the plaintiff
to show payment of sale consideration to Late Shri Jamal Khan as
stated in the sale agreement, oral evidence in this regard was self
contradictory.
While deciding the Issues No.1 & 3, it has also been held
that while, the sale agreement was allegedly executed on
11.09.1987, Shri Jamal Khan expired on 08.08.1996 and
thereafter, the suit was filed in the year, 2004 and there was no
evidence on record to show that during this intervening period of
about 17 years, the plaintiff was ready and willing to perform her
part of the agreement. Similarly, while deciding the Issue No.2, on
the basis of oral as also the documentary evidence placed on
record in the shape of revenue records, it has been held that the
plaintiff was never in possession of the subject property and it was
in the exclusive possession of the defendants.
There are concurrent findings of fact qua the Issues No. 1 to
3 which pertain to execution of the sale agreement dated
11.09.1987, transfer of the sale consideration, handing over of
possession by the seller to the plaintiff and readiness and
willingness of the plaintiff to perform her part of the agreement
which have not been shown to be perverse by the learned counsel
for the plaintiff.
[2023/RJJP/002538] (5 of 5) [CSA-306/2019]
Since, no substantial question of law is involved in the civil
second appeal, the same is dismissed accordingly.
(MAHENDAR KUMAR GOYAL),J
Sudha/69
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