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2019 DIGILAW 732 (CHH)

RAMESH BAFNA v. PUKHRAJ BAFNA

2019-06-21

PARTH PRATEEM SAHU, PRASHANT KUMAR MISHRA

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JUDGMENT Prashant Kumar Mishra, J. - This is an appeal by the defendant No.2 against the judgment and decree passed by the trial Court allowing the plaintiff's suit for specific performance of the agreement dated 04.03.2005 executed by one Premchand Bafna [not a party in the suit] agreeing to sell the suit property bearing Land and House Nazul Seat No.49C, Plot No.30 and 31/2, Area 228 sq. meter situated at Ganjline, Rajnandgaon for a sum of Rs.18,51,000/-. 2. Plaintiff's case, as emerging from the plaint averments, is that the suit property was jointly recorded in the name of Premchand Bafna and the defendants No.1 to 6 namely; Archana Bai, Ramesh Bafna, Lalit Kumar, Sarita Devi, Jai Kumar and Ku. Bhumika. Pursuant to an oral partition between the defendants and Premchand Bafna, a memorandum recording and acknowledging previous partition was recorded on 28.04.2004, in which the suit property fell in the share of Premchand Bafna. The suit property is adjoining to the plaintiff's house and otherwise Premchand Bafna is nephew/close relative of plaintiff Dr. Pukhraj Bafna. On 04.03.2005, Premchand Bafna agreed to sell the suit property to the plaintiff for Rs.18,51,000/- and received advance amount of Rs.3,51,000/-. The sale deed was to be executed by 30.05.2005 after receiving the balance sale consideration, however, on account of personal difficulties, Premchand Bafna did not execute the sale deed. The parties being follower of Jain Religion, daughters of Premchand Bafna namely; Kavita & Kanika were scheduled to obtain 'Sanyas' through Deeksha from a religious guru and for that Premchand Bafna along with his daughters went to Shahada (Maharashtra), but having gone to that place, the entire family took 'Sanyas'. Upon finding that any pending debt or liability creates hindrance for obtaining 'Sanyas', it was decided by Premchand Bafna in the presence of Jain Munis and reputed persons that the appellant/defendant No.2, who happens to be the brother of Premchand Bafna, shall receive the balance sale consideration and execute the sale deed in plaintiff's favour. Appellant/defendant No.2 also agreed to this and thereafter entire family members including Premchand Bafna obtained 'Sanyas' on 02.03.2006. 3. According to the plaintiff, a 'Sanyas'i is treated to have met 'civil death', therefore, his property shall devolve in accordance with the provisions contained under the Hindu Succession Act, 1956. Appellant/defendant No.2 also agreed to this and thereafter entire family members including Premchand Bafna obtained 'Sanyas' on 02.03.2006. 3. According to the plaintiff, a 'Sanyas'i is treated to have met 'civil death', therefore, his property shall devolve in accordance with the provisions contained under the Hindu Succession Act, 1956. Defendant No.1 Smt. Archana Bai being the mother and the appellant/defendant No.2 Ramesh Bafna being the brother were liable to execute the sale deed but on their failure to do so, legal notices were sent to the defendant Nos.1 and 2 on 20.10.2006 and 19.03.2007, but they failed to execute the sale deed, despite the plaintiff being ready and willing to perform his part of contract. 4. Defendant No.3 Lalit Kumar Bafna remained ex parte in the suit. 5. The other defendants filed common written statement denying the plaint averments. They denied any partition amongst the joint family members as also execution of the deed of acknowledgment of partition dated 28.04.2004. They also denied to have knowledge of any sale agreement executed by Premchand Bafna on 04.03.2005. It was also stated that if Premchand Bafna would have executed any agreement, he would have performed his liability before becoming 'Sanyasi', otherwise the 'Sanyas' was not possible. It was also pleaded that the suit has been filed on the basis of forged documents and further that even otherwise, after 30.05.2005 the agreement has become illegal and ineffective. It was also denied that Premchand Bafna has ever authorized the appellant/defendant No.2 to execute the sale deed in plaintiff's favour. 6. Based on the pleadings of the parties, the trial Court framed following 13 issues for trial on 25.03.2008 : 7. However, on 22.10.2010, the trial Court struck off all the issues framed on 25.03.2008 and framed only following 4 issues for adjudication : 8. After reframing of the issues, the trial proceeded to decided only 4 issues and eventually the Trial Court has decreed the suit. 9. We have heard lengthy arguments from both the sides. However, before dwelling on the merits of the matter and discussing the evidence available on record, we thought it necessary to first consider as to - whether the Trial Court's order dated 22.10.2010 for striking off the issues framed on 25.03.2008 has vitiated the trial ? 10. Admittedly the agreement dated 04.03.2005 has been executed by Premchand Bafna and not by any of the defendants. 10. Admittedly the agreement dated 04.03.2005 has been executed by Premchand Bafna and not by any of the defendants. Premchand Bafna has not been arrayed as a defendant in the suit nor any effort was ever made to serve him to ascertain whether he has authorized the defendant No.2 to execute the sale deed on his behalf. The defendant No.2 having denied the execution of acknowledgment of partition dated 28.04.2004, the said issue was germane for decision making. An issue was also framed as to whether defendant No.3 Lalit Kumar Bafna being the real brother of defendant No.2 Ramesh Bafna would also be a legal heir of Premchand Bafna. Another issue was framed as to whether agreement dated 04.03.2005 is binding on defendant No.1, mother of Premchand Bafna. 11. It is not a case that after contesting the entire suit, the defendants, except defendant No.3, who remained ex parte, amended their written statement to admit the plaint averments regarding deed of acknowledgment of partition and other relevant aspects of the matter. Moreover, Premchand Bafna also appears to be a necessary party to the suit, therefore, the trial on the basis of subsequently framed issues and not on the basis of issues framed on 25.03.2008 has vitiated the trial. 12. A close reading of the written statement would also highlight that the contesting defendants would also dispute the issue of civil death of Premchand Bafna; partition of the property; interest of the defendants No.5 and 6, who were minor at the time of filing of the suit; and further that the suit is not maintainable against the defendant Nos.1 and 2, meaning thereby that the suit would have been maintainable against Premchand Bafna alone and not against the present defendants. Thus, Premchand Bafna appears to be a necessary party to the suit without whom the suit should not have been proceeded. 13. Trial Court was, therefore, required to consider if the memorandum of acknowledgment of partition has not proved, the suit against the present defendants would be maintainable. Thus, Premchand Bafna appears to be a necessary party to the suit without whom the suit should not have been proceeded. 13. Trial Court was, therefore, required to consider if the memorandum of acknowledgment of partition has not proved, the suit against the present defendants would be maintainable. The issue as to whether Premchand Bafna would relinquish his interest in the suit property in favour of defendants including defendant No.3 Lalit Kumar Bafna would also have the bearing in the outcome of the suit and this issue can be decided only when Premchand Bafna is joined to the suit, therefore, while holding re-trial, the trial Court shall also frame an issue as to whether in absence of Premchand Bafna, being joined as defendant, the suit would be maintainable against the present defendants. 14. For the foregoing, the impugned judgment and decree passed by the trial Court deserves to be and is hereby set aside. The matter is remitted back to the trial Court for fresh trial on the basis of issues framed on 25.03.2008 as well as on the basis of observations made in the preceding paragraphs of this judgment. 15. At this juncture, it is noteworthy to mention here that the respondent/plaintiff has moved an application under Order 6 Rule 17 of the CPC for amendment in the cause title of the plaint as well as for making some additional pleadings. 16. Since we have remitted the matter back to the trial Court for fresh trial on the issues framed on 25.03.2008, the application under Order 6 Rule 17 of the CPC for amending the plaint is allowed. The plaintiff shall incorporate the amendment in the plaint when the matter will be taken up for trial by the trial Court. The defendants are permitted to make consequential amendment for which they will be at liberty to move before the trial Court. 17. In the result, the instant first appeal is allowed to the extent indicated above.