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2009 DIGILAW 1107 (MP)

AMMILAL v. KAMLA BAI

2009-09-09

U.C.MAHESHWARI

body2009
Judgment U.C.Maheshwari, J. ( 1. ) This appeal is directed by the appellants/plaintiffs under Section 100 of the C.P.C. being aggrieved by the judgment and decree dated 20.01.1994 passed by the Additional District Judge Multai,District Betul in civil regular appeal No.l5-A of 1985 reversing the judgment and decree dated 14.11.1984 passed by Civil Judge Class-I Multai in civil original suit no.90-A of 1994, decreeing the suit of the appellants for specific performance with respect of the agricultural land. ( 2. ) The facts giving rise to this appeal are that the appellants herein filed the suit for specific performance against the respondent contending that the respondent entered into an agreement with him on 4.3.1977 to sell his revenue paid land area 2.360 hectares, the part of survey no.72 described in the plaint in consideration of Rs.5,000/-. Out of which Rs.1,200/- was paid in advance at the time of execution of the same, while Rs.1,300/- was paid on 7.4.1977. As per further terms of the agreement, the registered sale deed was to be executed by the respondent after receiving the remaining consideration, up to the festival of Holi 1978. Subsequent to agreement, the appellants remained ready and willing to perform their part of contract but the respondent did not comply his part by executing the registered deed after taking the remaining consideration. On which the impugned suit was filed. ( 3. ) In the written statement of the respondent by denying the averments of the plaint, it is stated that she never entered into the alleged agreement with the appellants to sale her agricultural land. In fact, she being in need of money approached the plaintiffs Ammilal through one Ram Rao Patwari to make available the loan, pursuant to that, she took Rs.2,000/- from such Ammilal on 4.3.1977. As per terms she had to return Rs.2,500/- total to the appellants Ammilal with interest. As per further averments the disputed land was given to the appellants on lease for two years. In such premises, the alleged transaction was only the loan transaction and was not the agreement to sale. However, respondent has admitted her signature on the alleged agreement in the written statement. In such premises the prayer for dismissal of the suit is made. ( 4. ) In view of the pleadings of the parties as many as 7 issues were framed on which the evidence was recorded. However, respondent has admitted her signature on the alleged agreement in the written statement. In such premises the prayer for dismissal of the suit is made. ( 4. ) In view of the pleadings of the parties as many as 7 issues were framed on which the evidence was recorded. On appreciation, the suit of the appellants was decreed by the trial Court. The same was challenged by the respondent before the first appellate Court. On consideration, by allowing the same after setting aside the judgment of the trial Court, the suit of the appellants has been dismissed in its entirety on which the appellants have come forward to this Court with this appeal. ( 5. ) Earlier vide order dated 8.12.1995 this appeal was admitted on the following substantial questions of 1aw:- "Whether under the facts and in the circumstances of the case the appellant is entitled to a decree for specific performance in view of the findings and the admissions made by the respondent ?" ( 6. ) Shri A.B. Khan, learned counsel for the appellants after taking me through the pleadings, evidence and the alleged agreement available on record argued that in the light of admission of the respondent in her written statement regarding execution of the agreement Ex. P./l,the trial Court had rightly decreed the suit of the appellants, but the appellate Court has committed error in dismissing the suit by setting aside such decree holding that the impugned transaction of the agreement was not the agreement to sale between the parties but in fact it was a loan transaction. Such approach of the appellate Court is contrary to record and also the existing legal position. He further said that the appellate Court has also committed error in holding that the respondent did not have any right to enter in the agreement with the appellants to sale any part of the aforesaid survey no. In any case, the respondent being co -Bhoomiswami,was entitled to transfer her undivided share in the disputed land. The appellate Court was bound to affirm the decree of the trial Court in favour of the appellants till the extent of right and entitlement of the respondent in the disputed land hut contrary to it by allowing the appeal, their entire suit has been dismissed under the wrong premises. The appellate Court was bound to affirm the decree of the trial Court in favour of the appellants till the extent of right and entitlement of the respondent in the disputed land hut contrary to it by allowing the appeal, their entire suit has been dismissed under the wrong premises. In any case even on dismissing the suit for performance of contract, the same ought to have been decreed to refund the sum taken by the respondent in advanced from the appellants. With this he prayed to answer the aforesaid question in favour of the appellants by allowing this appeal. ( 7. ) Having heard the counsel at length, I have gone through the records and also perused the impugned judgments. ( 8. ) It is an admitted fact between the parties that the alleged agreement dated 4.3.1977 was executed by the respondent in favour of the appellants. As per case of the plaintiffs, it was an agreement to sell the disputed land, in consideration of Rs.5,000/- out of which, some advance consideration Rs.1,200/- was given to the respondent at the initial stage of such agreement while Rs.1,300/- was paid on 7.4.1977. As per further term the respondent was bound to execute the sale deed after receiving the remaining sum up to the festival of Holi 1978. While the respondent defended the case on the ground that she never entered in any agreement with the appellants to sale her land. In fact she took some loan of Rs.2,000/- from the appellant Ammilal and the same was to be repaid with interest of Rs.500/- i.e. total Rs.2,500/-. It is settled proposition of law that if terms and conditions of the transaction has been reduced in writing between the parties and execution of such document is admitted then in view of Section. 91 of Evidence Act, the oral evidence could not be taken into consideration to draw any inference contrary to the terms of such document. In such premises, the approach of the trial Court holding due execution of alleged agreement by the respondent in favour of appellants to sale the land appears to be correct. In such premises, the finding of the appellate Court holding such transaction to be loan transaction is set aside and till this extent the judgment and decree of trial Court is restored for limited purpose for which the reason are being stated in following paras. In such premises, the finding of the appellate Court holding such transaction to be loan transaction is set aside and till this extent the judgment and decree of trial Court is restored for limited purpose for which the reason are being stated in following paras. ( 9. ) It is apparent on record that the impugned suit has been filed by the appellants stating that they always remained ready and willing to perform their part of the contract to get registered the sale deed in their favour after paying the remaining sum of the consideration. But on perusing the record I have not found any document or admissible evidence showing that subsequent to execution of . agreement Ex.P./l,at any point of time the appellants had shown their readiness or willingness to perform their part of the contract. In the matter of specific performance, the plaintiffs, who wants such decree, are bound to prove their readiness and willingness to perform their part of the contract, failing which, no such decree could be passed in favour of such persons. In the lack of such evidence, no decree for specific performance would have been passed by the trial Court and in such premises, while deciding the appeal, the appellate Court has not committed grave any error in setting aside the decree for specific performance, but committed error in holding the transaction to be a loan transaction, contrary to the terms of agreement and to Section 91 of the Evidence Act. ( 10. ) Apart the above, on perusing the certified copy of the Khasra regarding disputed land issued by the Tahsildar,Multai,it is apparent that the same is recorded as Bhoomiswami in the name of as many as eight persons including the present respondent Kamla Bai. So in such premises, in any case, the present respondent did not have any exclusive right or authority to enter into the alleged agreement with the appellants to sale the disputed land. Although, as per settled position, she could have entered into such agreement to sell the land till the extent of her undivided share, but subject to consent of the other co-sharers of the property as the same has been inherited in succession by all the recorded Bhoomiswami jointly from there predecessor. In such premises, the suit of the appellants could not be decreed for specific performance contrary to the interest of other co- Bhoomiswami. In such premises, the suit of the appellants could not be decreed for specific performance contrary to the interest of other co- Bhoomiswami. But in any case the Courts below ought to have passed the decree to refund the advance money taken by respondent. ( 11. ) In the abovementioned circumstance while answering the said question it is held, that the appellants are not entitled for the decree of specific performance even on admission of the respondent regarding execution of the alleged agreement. Consequently, in view of the settled proposition of law that whenever on appreciation of evidence, it is found that the proposed purchaser plaintiff himself was not ready and willing to perform his part of contract then, by refusing the prayer for specific performance, the plaintiffs suit could be decreed for refund of the advance money given to the defendant-seller as advance consideration. My aforesaid view is fully fortified by the decision of this Court in the matter of Leeladhar Yadav vs. Siddhartha Housing Co-operative Society Ltd.,Garha, 2006 MPLJ Vol-II,page 329 and in the matter of Nirmal Kumar vs. Smt. Kanti Devi, 2007 (4)MPLJ 464. ( 12. ) In view of the aforesaid this appeal is allowed in part and by setting aside the judgment and decree of both the Courts below, the suit of the appellants is partly allowed in following terms. (a) While refusing the prayer for specific performance of the contract regarding disputed land, the suit is decreed against the respondent for refunding the sum of Rs.2,500/- with the interest @6% per annum from the dates 4.3.1977 and 7.4.1977, on which Rs.1,200/- and Rs,1,300/-respectively were received by the respondent, till realisation of the entire sum. (b)The respondent shall also pay the cost of the case through out to the appellants by affording her own costs. (c) The cost of this appeal is quantified Rs.1,000/-. The decree be drawn up accordingly. ( 13. ) The appeal is allowed in part as indicated above. Appeal partly allowed.