Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 299 (MP)

Babu Singh Kushwaha v. Rammo Bai

2016-04-11

ROHIT ARYA

body2016
JUDGMENT 1. This writ petition under Article 227 of the Constitution of India at the instance of the plaintiffs is directed against the order dated 6.10.2015 passed in Miscellaneous Civil Appeal No.85/2015 passed by VIII Additional District Judge, Gwalior. The order dated 13.8.2015 passed by the trial Court in Civil Suit No.8-A/2015 rejecting the application filed under Order XXXIX rules 1 and 2 CPC has been affirmed. 2. Facts necessary for disposal of this writ petition are in narrow compass. Suit for specific performance of agreement, declaration and permanent injunction has been filed on 12(13).3.2015 by the plaintiffs’/petitioners’ inter alia contending that by an agreement dated 10.10.2011 defendant No.1, Smt. Rammo Bai agreed to sell the suit land in favour of plaintiffs’ described in paragraph 2 of the order of the trial Court for a consideration of Rs.55.00 lacs. At the time of agreement, defendant No.1 has accepted advance money of Rs.5,00,000/- and has further agreed that the remaining consideration amount shall be paid at the time of execution of the sale-deed. 3. It is contended that the plaintiffs have all along been ready and willing for execution of the sale-deed but defendant No.1 has avoided the same with one or the other pretext. It is contended that once suit has been filed by defendants No.2 to 4 wherein plaintiff has also been arrayed as one of the defendants; Civil Suit No.51-A/2010. In the said suit, the plaintiffs have also filed counter-claim on 21.2.2012. However, the plaintiffs were proceeded ex parte on 11.9.2012. On 2.2.2015 defendants No.2 to 4 have informed plaintiffs that the suit land has been transferred in their favour by defendant No.1, Smt. Rammo Bai on the basis of compromise decree dated 19.1.2015 passed in Civil Suit No.51-A/2010 (New No.19-A/2010). It is further contended that plaintiffs have filed First Appeal No.26/2015 before the High Court against the aforesaid compromise judgment and decree and the same is pending for consideration. 4. It is alleged that defendant No.1 had no right to execute the sale deed in favour of defendants No.2 to 4 in the teeth of the agreement dated 10.10.2011 for specific performance of agreement to sell enforcement which is sought in the instant suit. 4. It is alleged that defendant No.1 had no right to execute the sale deed in favour of defendants No.2 to 4 in the teeth of the agreement dated 10.10.2011 for specific performance of agreement to sell enforcement which is sought in the instant suit. Accordingly, the relief for declaration that the sale-deed executed in favour of defendants No.2 to 4 be declared as null and void with further direction to defendant No.1 to execute the sale-deed in pursuant to the agreement dated 10.10.2011 in favour of the plaintiffs on receipt of remaining consideration amount of Rs.50.00 lacs. It is also prayed for issuance of permanent injunction restraining the defendants No.2 to 4 not to alienate the suit land and for maintaining status quo till decision of the instant suit. 5. Defendants No.2 to 4 have filed written-statement and contested the suit. It is contended that in Civil Suit No.51-A/2010, the plaintiffs have filed written-statement and counter claim but they have not disclosed the alleged agreement dated 10.10.2011. As a matter of fact, the alleged agreement is a fraudulently prepared document which has never existed. It is contended that late Lalaram, husband of defendant No.1, Smt. Rammo Bai the original owner of the suit land has executed an agreement to sell in favour of father of defendants No.2 to 4, Ramvilas Kirar on 30.11.2001. However, before execution of sale-deed, Lalaram has passed away. Therefore, a notice was served upon the legal heirs of Lalaram for execution of the sale deed but of no avail. Hence, Suit No.51-A/2010 (New No.19-A/2010) was filed seeking specific performance of the agreement against defendant No.1 During pendency of the suit, the said suit was compromised between defendant No.1 and defendants No.2 to 4 vide judgment and decree dated 19.1.2015. Thereafter, sale-deed was executed by defendant No.1, Smt. Rammo Bai in favour of defendants No.2 to 4 on 30.1.2015 and as a consequence thereof, suit land stands mutated in their names by orders of revenue authorities on 6.8.2015. 6. Defendant No.1, Smt. Rammo Bai has also filed separate written statement and denied factum of alleged agreement dated 10.11.2011. Defendant No.1 has affirmed execution of sale-deed dated 30.1.2015 in favour of defendants No.2 to 4 pursuant to original agreement dated 30.11.2001 between her late husband, Lalaram and father of defendants No.2 to 4, Ramvilas Kirar (since dead). 6. Defendant No.1, Smt. Rammo Bai has also filed separate written statement and denied factum of alleged agreement dated 10.11.2011. Defendant No.1 has affirmed execution of sale-deed dated 30.1.2015 in favour of defendants No.2 to 4 pursuant to original agreement dated 30.11.2001 between her late husband, Lalaram and father of defendants No.2 to 4, Ramvilas Kirar (since dead). It is further contended that while the proceedings of Suit No. 51-A/2010 are in progress, the plaintiffs used to accompany her to the Court as they are belonging to the same community and won her confidence being an illiterate woman and assured to contest the suit on her behalf as well. In the process, plaintiffs in the instant suit prepared certain forged documents and kept with them. The plaintiffs demanded half share of the amount of consideration paid by defendants No.2 to 4. Since she refused to do so, therefore, the instant suit has been filed based on forged and fabricated documents. With the aforesaid pleadings, the suit is sought to be dismissed. 7. In paragraph 12 of the order impugned, the trial Court has observed that during pendency of Suit No.51-A/2010, without permission of the Court, the alleged agreement dated 10.10.2011 is claimed to have been executed. Therefore, the plaintiffs are bound by the judgment and decree passed in suit No.51-A/2010. Based upon the alleged agreement dated 10.10.2011, no right, title and interest is created in favour of the plaintiffs, therefore, prima facie case is not found in favour of plaintiffs. The other factors, like balance of convenience and irreparable loss are also not found in favour of the plaintiffs as the alleged agreement though claimed to have been executed but the same was without permission of the Court during pendency of suit No.51-A/2010. Therefore, the agreement, if any entered into between defendant No.1 and plaintiffs shall be subject to the judgment and decree passed in Civil Suit No.51-A/2010. Accordingly, trial Court rejected the application seeking temporary injunction filed by the plaintiffs. 8. Therefore, the agreement, if any entered into between defendant No.1 and plaintiffs shall be subject to the judgment and decree passed in Civil Suit No.51-A/2010. Accordingly, trial Court rejected the application seeking temporary injunction filed by the plaintiffs. 8. First appellate Court on reappreciation of the material placed on record has affirmed the order passed by the trial Court and found that prima facie case is in favour of defendants No.2 to 4 after execution of sale deed dated 30.1.2015 pursuant to decree dated 19.1.2015 in Civil Suit No.51-A/2010 as well as mutation order passed by competent revenue authorities dated 6.8.2015, as they hold title and are in possession of the suit land. Therefore, other factors like balance of convenience and irreparable loss are in their favour. Consequently, dismissed the appeal. 9. Learned senior counsel while criticizing the aforesaid orders of the Courts below tried to contend that the Courts below have failed to appreciate that plaintiffs have already preferred First Appeal No.26/2015 before the High Court against ex parte compromise judgment and decree dated 19.1.2015 in Civil Suit No.51-A/2010 and the same is pending for consideration. Therefore, the sale-deed dated 30.1.2015 based upon the aforesaid compromise decree cannot be said to have become absolute and is detrimental to the right, title and interest of the plaintiffs as the instant Suit No.8-A/2015 is for specific performance of agreement to sell based on agreement dated 10.10.2011 is pending consideration before the trial Court. Therefore, defendants No.2 to 4 have to be restrained by passing temporary injunction not to deal with the suit land in any manner. Further, he tried to contend that the aforesaid sale-deed executed in favour of defendants No.2 to 4 by defendant No.1 is under suspicious circumstances as defendant No.1 had no knowledge of the alleged agreement dated 30.11.2011 (supra), as evidence from her deposition in the earlier suit. 10. On the contrary, learned counsel for the contesting respondents' denied factum of execution of agreement dated 10.10.2011 if favour of plaintiffs. It is contended that the alleged agreement is prepared by playing fraud upon defendant No.1, Smt. Rammo Bai. 10. On the contrary, learned counsel for the contesting respondents' denied factum of execution of agreement dated 10.10.2011 if favour of plaintiffs. It is contended that the alleged agreement is prepared by playing fraud upon defendant No.1, Smt. Rammo Bai. She has also stated that she has compromised the Suit No.51-A/2010 filed defendants 2 to 4 on 19.1.2015 and also executed the sale-deed dated 30.1.2015 in favour of defendants 2 to 4 pursuant to the agreement to sell executed between late Lalaram husband of defendant No.1, Smt. Rammo Bai and Ramvilas Kirar, father of defendants No.2 to 4 dated 30.11.2001 (supra). Thereafter, possession of suit land has been delivered to the defendants 2 to 4. The land records are also accordingly mutated in their favour. That apart, learned counsel further contended that the alleged agreement dated 10.10.2011 is a concocted document prepared much later stage only for the purpose of filling the instant Suit No.8-A/2015 as the present plaintiffs in written-statement and counter-claim filed in Civil Suit No. 51-A/2010 did not even mention the existence of alleged agreement. Even otherwise, suit No. 51A/2010 was filed on 9.12.2010 seeking specific performance of agreement dated 30.11.2011 (supra) whereas the alleged agreement was dated 10.10.2011 and that too without prior permission of the Court and not in the knowledge of the defendants No.2 to 4. Under such circumstances, no claim whatsoever can be rested upon such fraudulently prepared agreement by plaintiffs. That apart, it is contended that no right or title or interest in created in favour of plaintiffs on the strength of the aforesaid alleged agreement. 11. Heard learned counsel for the parties. 12. While considering the application filed by the plaintiffs, under Order XXXIX Rules 1 and 2 CPC, the trial Court has observed that on the one hand plaintiffs suit is for specific performance of agreement based on agreement dated 10.10.2011 entered by defendant 1 Smt. Rammo Bai and on the other hand pursuant to sale-deed dated 30.1.2015 in favour of defendants No.2 to 4 by defendant No.1 based upon compromise decree dated 19.1.2015 pursuant to agreement entered between late Lalaram, husband of defendant No.1 and Rambilas Kirar, father of defendants No.2 and 4 and the suit land stands mutated in their names by orders passed by competent revenue authorities on 6.8.2015 and they are in possession. Hence, the factors like; prima facie case, balance of convenience and irreparable injury are in favour of defendants No.2 to 4. On appeal, the first appellate Court after reappreciation of the entire material has affirmed the finding so recorded by trial Court and dismissed the appeal. 13. This Court has carefully perused the orders passed by the Courts below. In the opinion of this Court. While rejecting the application filed under Order XXXIX rule 1 and 2 CPC, both the Courts below have rightly held that the plaintiffs have failed to establish their prima facie case on the strength of the alleged agreement dated 10.10.2011. Moreover, suspicion cast on existence of agreement dated 10.10.2011 by Courts below for the reason that plaintiff's in their written-statement as well as is the counter-claim filed in Civil Suit No. 51-A/2010 choose not to disclose the same for which there is no explanation offered in the present proceedings, in the opinion of this Court is of relevance for the purpose of addressing on prima facie case. Further, the agreement is alleged to be dated 10.10.2011, the suit is filed on 13.3.2015 seeking performance of the said agreement. There is no explanation by the plaintiffs' for filling the suit almost 4 years after entering into the said agreement. Therefore, considering the facts and circumstances of the case, in the opinion of this Court, both the Courts below have not committed and illegality by rejecting the application under Order XXXIX rules 1 and 2 CPC. Hence, no interference is warranted. However, before parting with the order, it is considered apposite to observe that any of the observations/ findings of the Courts below and that of this Court shall not have any bearing on the merits of the dispute involved in the suit and trial Court shall decide the same on its own merits, in accordance with law independently. 14. With the aforesaid observation, writ petition stands disposed of. 15. It is made clear that this Court has not expressed any opinion on merits of the case.