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Madhya Pradesh High Court · body

2014 DIGILAW 124 (MP)

Komal Bai v. Jasoda

2014-01-27

M.K.MUDGAL

body2014
ORDER 1. The appellants/plaintiffs have filed this appeal under section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 27.1.2010 passed by the Court of II ADJ, Guna in Civil Appeal No.29A of 2009, confirming the judgment and decree dated 7.1.2009 passed by the Court of 1st Civil Judge, Class II, Guna in Civil Suit No.74A/08 whereby, the suit filed by the plaintiffs for declaration of title and permanent injunction was dismissed holding that the plaintiffs have failed to prove their suit. In this appeal, the appellants are referred to as “plaintiffs” and the respondents as “defendants’. 2. The facts in brief of the plaint are that the disputed plot situated at Sakatpur Road Purani Chhawani was purchased by husband of plaintiff Komalbai vide agreement dated 12.7.1988 from one Mohanlal which was recorded in favour of plaintiff No. 2 Majboot Singh son of plaintiff No.1 and was handed over possession of the same. Thereafter, by playing fraud, the defendant Mohanlal (husband of defendant No.1 and father of other defendants) describing the plaintiff No.2 as tenant filed a suit against him for eviction which was decreed and subsequently was also confirmed by the appellate Court. Now, in the light of the aforesaid judgment and decree, the defendants were trying to dispossess the plaintiffs from the said plot. Thereafter, the suit for declaration of title and permanent injunction was filed by the appellants. 3. The defendants filing written statement have denied the plaint avernments stating therein that the plaintiffs are in possession of the property as tenants and no agreement to sell was executed by the husband of defendant No.1 and father of the remaining defendants, Mohanlal in favour of the plaintiff No.2 as the document of agreement submitted by the plaintiff does not bear signature of Mohanal. On the basis of aforesaid facts, it was prayed that the suit filed by the plaintiffs be dismissed. 4. After framing of the nine issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court dismissed the suit of the plaintiffs against the defendants as stated above. 5. Being aggrieved by the judgment and decree passed by learned trial Court, the plaintiffs filed an appeal before the first appellate Court which was also dismissed. Hence, this instant second appeal has been filed as stated herein above. 6. 5. Being aggrieved by the judgment and decree passed by learned trial Court, the plaintiffs filed an appeal before the first appellate Court which was also dismissed. Hence, this instant second appeal has been filed as stated herein above. 6. Heard learned counsel for the appellant and perused the record. 7. Learned counsel for the appellants submitted that both the Courts below have committed an error in refusing to take on record a document of agreement to sell dated 3.6.88 whereby the plaintiff No.2 purchased the property from Mohanlal, father and husband of the defendants. 8. On perusal of the record, it becomes clear that an unregistered document of agreement to sell has been produced on record. An application under Order 7 Rule 14(4) of CPC was filed by the plaintiffs for taking the said document on record on 19.1.07. The said application was rejected vide order dated 19.6.07 stating that the document was neither registered nor duly stamped. It is true that the findings for dismissing the said application do not appear to be plausible. However, if the said document is taken on record merit of the case would not be affected as the plaintiffs have filed the suit for declaration of title and permanent injunction of the disputed property. The said document (agreement to sell) does not create any title in favour of the plaintiffs under section 54 of the T.P. Act. As per the document of agreement to sell, it was executed on 3.6.88 for consideration of Rs.3,500/- however, the plaintiffs neither got the agreement to sell performed in their favour nor was the suit filed for specific performance of the contract. In view of the facts, it is evident that the ownership of the disputed land was not legally transferred in favour of the plaintiffs, owing to which, the decree for declaration of title cannot be passed by the trial Court. 9. The learned counsel further submits that if the said document had been taken on record, it would have been used to prove the possession of the plaintiffs and the plaintiffs are entitled to get protection for their possession under section 53A of the T.P. Act. The said contention also does not have any relevance in this case as for seeking protection under section 53A of the T.P. Act the purchaser has to fulfill the terms and conditions of contract on his part. The said contention also does not have any relevance in this case as for seeking protection under section 53A of the T.P. Act the purchaser has to fulfill the terms and conditions of contract on his part. In this regard in the judgment of Bhavuti v. Alam (deceased) through Lrs. And anr. 2013 (4) M.P.L.J. 39, it has been held that the transferee has to show that he has done some act in furtherance of the contract and has performed or is ready and willing to perform part of his contract but in this case the plaintiffs has utterly failed to prove the same as the suit ought to have been filed for specific performance of the contract but it was not done so. 10. Considering the aforesaid facts, it is concluded that both the learned Courts below have not committed any error in dismissing the suit. Findings of both the Courts are concurrent against the plaintiffs and in favour of defendants, therefore, no substantial question has been found in this appeal for admission. Thus, the appeal having no substance and merit is hereby dismissed. No order as to the cost.