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2012 DIGILAW 436 (ALL)

Gokaran @ Bhondu and others v. Chhotey lal

2012-02-16

SAJYENDRA SINGH CHAUHAN

body2012
Satyendra Singh Chauhan, J.;- Case called out in the revised list. Counsel for the respondent is not present. Heard learned counsel for the appellants. The appeal has been filed challenging the judgments and decree dated 6.1.1998 and 15.1.1998 passed by the appellate court. The facts giving rise to the present appeal are that an agreement to sell, which is alleged to have been executed on 25.6.1981, a limitation for a period of one year was given for execution of the sale deed. Since the defendant failed to execute the sale deed, a suit for Specific Performance of Contract was filed. The trial court dismissed the suit and thereafter an appeal was filed by the plaintiff and the appellate court proceeded to allow the appeal. Hence this appeal. Submission of learned counsel for the appellants is that appeal has been allowed merely on the clarification, which was obtained by the court under Order 10 Rule 2 CPC and that was made the basis for allowance of the appeal, whereas the defendant has specifically stated in his written statement that the agreement to sell was executed on 10.10.1979 for a consideration of Rs.12,500/- and a deed of re-conveyance was executed on the dame day, which was duly authenticated by witnesses, Ganga Prasad and Bachaule with a condition that as soon as the amount would be returned, the land will be returned back to the defendant. Ganga Prasad happens to be the Clerk of the plaintiff, who was an Advocate However, this fact was denied by the plaintiff in his replication, but when he appeared in the witness box, he did not deny the aforesaid fact. In order to prove the deed of re-conveyance dated 10.10.1979 and the return of money, it is submitted by the counsel for the appellants that two witnesses, namely, Ganga Prasad and Bachaule appeared in the witness box and they admitted the execution of the deed of re-conveyance and return of the amount to the plaintiff. One more witness, namely, Ram Kishan has also stated that money was returned at the place of Jagat Narain, Advocate in the court and the said fact was proved by Ram Kishan. One more witness, namely, Ram Kishan has also stated that money was returned at the place of Jagat Narain, Advocate in the court and the said fact was proved by Ram Kishan. The plaintiff appeared in the witness box and he denied the execution of the said document, but the witnesses have admitted the execution of the said document and return of the amount along with the evidence of Ram Kishan, who also supported the version of the defendant in regard to return of money. The trial court has rightly appreciated the evidence on record and dismissed the suit. Once the parties have admitted the execution of the agreement to sell dated 10.10.1979 and the deed of re-conveyance being executed on the same day has also been admitted by the witnesses, the only question which has to be seen is as to whether the agreement to sell dated 25.6.1981 was a valid agreement and on the basis of which the suit could not have been decreed. Once it has come in the evidence that Rs.12,500/- was returned and the said fact was proved by Ram Kishan, then there was no occasion for the defendant to have entered into agreement to sell on 25.6.1981. In the aforesaid circumstances, I am in full agreement with the reasoning given by the trial court and the appellate court has misdirected itself by recording a finding, which was not supported by any evidence. The appellate court has based his finding only on the clarification obtained under Order 10 Rule 2 CPC, but the trial court has appreciated the entire evidence and has come to the conclusion that the alleged agreement to sell was not executed on 25.6.1981. Counsel for the appellants has placed reliance upon the two decisions of this Court i.e. Chandrika and others v. Sarjoo Pandey and others, 1989 (15) ALR 434 and Smt. Azad Kumari v. Satya Prakash, 1983 (9) A.L.R.497, wherein it has been held that such clarification cannot be made the basis for allowing the claim of a party. In view of the aforesaid proposition of law, the judgments and decree passed by the appellate court cannot be sustained in law and they deserve to be set aside. The appeal is accordingly allowed and the judgment and decree dated 6.1.1998 and 15.1.1998 are hereby set aside and the judgment and decree dated 27.9.1986 passed by the trial court is maintained.