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2020 DIGILAW 495 (MP)

Amritlal Choudhary v. Smt. Ahilya Bai And Others.

2020-05-01

VISHAL DHAGAT

body2020
JUDGMENT 1. Appellant-defendant No.1 has filed this second appeal challenging the judgment and decree dated 08.01.2019 passed in Regular Civil Appeal No.60/2018 by the 4th Additional District Judge, Katni (M.P.), whereby the appeal filed against the judgment and decree dated 19.03.2018 passed in RCSA No. 18/2011 by 1st Additional Civil Judge Class 2 to the Court of 1st Civil Judge Class 2, Katni, has been rejected. 2. Respondents No.1 to 5 were plaintiffs before the trial Court and they had filed a civil suit for eviction of appellant-defendant No.1 namely Amritlal from suit land i.e. Khasra No.1228, raqba 0.60 hectare, out of total raqba of 1.26 hectares, situated in Village Khirhani, Tehsil Bahoriband, District Kanti, M.P. 3. As per respondents-plaintiffs case, suit land was their ancestral land belonging to their father, who had died on 09.09.2004. Respondents-plaintiffs are joint owners of Khasra No. 1228. Said land was given on lease for a period of three years to Amritlal. For getting the lease of three years, Amrit Lal was required to pay the loan amount which was taken by the father of respondents for construction of a well over the suit land. The said loan could not be paid by the father of respondents-plaintiffs. For period of three years, appellant-defendant No.1 did agriculture on the land in question and repaid back the loan amount of Rs.50,010/- and also earned profit of Rs.40,000/- from the land in question. After completion of the lease period, appellant-defendant No.1 did not hand over the possession of land in question to the respondents-plaintiffs. Land was taken on lease on 25.04.2006. After completion of three years, possession of land was not given to the respondents-plaintiffs. Plaintiffs filed a suit for getting possession of land from appellant-defendant-Amritlal. 4. Appellant Amritlal had filed his written statement and also counterclaim for specific performance of contract and permanent injunction in respect of suit land. It was submitted by him that he had entered into an oral agreement of sale with Hulasi, the father of plaintiffs, on condition that he will pay the loan amount and thereafter, Hulasi will execute registered sale deed in favour of Amritlal. It was also averred by appellant that Ikrarnama was written by Panchayat and he had filed Ikrarnama as Ex.D/6 before the trial Court. The said Ikrarnama has been signed by the plaintiff namely Laxman, Ram Ratan, Rajesh and Suresh. It was also averred by appellant that Ikrarnama was written by Panchayat and he had filed Ikrarnama as Ex.D/6 before the trial Court. The said Ikrarnama has been signed by the plaintiff namely Laxman, Ram Ratan, Rajesh and Suresh. Appellant Amrit Lal has proved the signature of plaintiff on Ikrarnama exhibit D/6. Witnesses namely Amritlal (DW1) and Bharat Lal Choudhary (DW2) have also deposed before the trial Court regarding the Ikrarnama and supported the version of Amritlal. Amrit Lal has filed Rin-pustika Ex.D/4 from his possession. It was submitted by him that after entering into agreement Rin-pustika was handed over to him. He also exhibited document Ex.D/5 i.e. the certificate issued by Panchayat that agreement entered into by Hulasi has not been followed by him. 5. Learned trial Court as well as appellate Court after considering the evidence available on record held that Ikrarnama Ex.D/6 i.e. the agreement to sell the property to Amritlal has been proved in the Court. It was further held that appellant-defendant No.1 was unable to prove that he was ready and willing to comply his part of contract. The averment is made that he was ready to comply with his part of contract but no such evidence had been adduced. Learned trial Court considered the documents, which have been filed by the appellant i.e. Ex.D/10 i.e. that is Rojnamchasanha, Ex.D/7 and Ex.D/8 i.e. written objections raised by appellant before Deputy Registrar and receipt of objection. One more document that is Ex.D/5 i.e. certificate of Panchayat was also filed to show the readiness and willingness of the appellant to execute sale deed. Learned trial Court has disbelieved the documents on the ground that all the documents were prepared after filing of suit as an afterthought and said documents could not be believed. It has also been held that no notice has been given to plaintiffs for execution of sale deed. In the absence of evidence and notice, it cannot be said that appellant was ready and willing to perform his part of contract and therefore, counterclaim for decree of specific performance of contract and permanent injunction was dismissed, which was affirmed by the appellate Court. Trial Court decreed the suit for handing over the vacant possession of the suit land to plaintiffs and relief claimed for damages was dismissed. 6. Counsel appearing for the appellant has proposed the following substantial questions of law:-- 1. Trial Court decreed the suit for handing over the vacant possession of the suit land to plaintiffs and relief claimed for damages was dismissed. 6. Counsel appearing for the appellant has proposed the following substantial questions of law:-- 1. Whether the judgment in the case of Veer Singh versus Uday Singh, 2013 (3) MPLJ 632 has impliedly overruled in R. Lakshmikantham versus Devaraji, (2019) 8 SCC 62 , and as a consequence, the findings recorded by the trial Court and the appellate Court in respect of readiness and willingness to perform the contract is illegal? In the matter reported in (2019) 8 SCC 62 , notices were given by the plaintiff on 18/12/2002 on the address of defendant that he had received Rs.5000/- initially and Rs.60,000/- has been received on 14/10/2002. Letter further says that repeated calls were made that plaintiff is ready with the balance money and defendant should come forward immediately to discharge the mortgage and get all the documents from the mortgagee and execute the sale deed. The said documents, which is believed by the High Court and Apex Court in its judgment. It was held that in concluding the readiness and willingness of appellant-plaintiff can be inferred from letters dated 18/12/2002 and 19/12/2002. High Court also erred in not considering registered post acknowledgment duly returned with the remark 'addressee did not receive', it is deemed to be served unless contrary is proved. There is no such facts in the present appeal. Notices were not given to the plaintiffs by the appellant for specific performance of contract and the documents which were filed by the appellantdefendant No. 1 showing readiness and willingness has not been believed as all the documents were created after filing of suit. In view of above, substantial question No.1 does not arise in this appeal because facts of the present case are different. 2. Whether in view of law laid down in R. Lakshmikantham versus Davarajaji, the counterclaim for specific performance of contract is filed within period of limitation therefore same deserves to be decreed? Apex Court held in aforesaid judgment that a suit for specific performance is filed within period of limitation, delay cannot be put up against the plaintiff. Appellant has not denied the relief of specific performance of contract due to delay in filing of suit, therefore, the said decision will not come in aid of the appellant. 3. Apex Court held in aforesaid judgment that a suit for specific performance is filed within period of limitation, delay cannot be put up against the plaintiff. Appellant has not denied the relief of specific performance of contract due to delay in filing of suit, therefore, the said decision will not come in aid of the appellant. 3. Whether the lower Court erred in law in rejecting the application under Order 41 Rule 27 CPC? Learned appellate Court considered the application filed under order 41 rule 27 and had given a specific finding that no notice has been given by the appellant to plaintiffs for specific performance of contract. If any notice for specific performance of contract dated 07/10/2009 was given by the appellant, then appellant might have filed a suit for specific performance on non execution of registered sale deed. He has not taken any action for filing suit for specific performance, which shows that no notice was given by the appellant. Learned appellate Court held that non filing of civil suit by the appellant for specific performance of contract also indicates that the appellant was not willing and ready to perform his part of contract. 7. There is concurrent findings of fact by the appellate Court as well as by the trial Court that appellant was not ready and willing to perform his part of contract. Case reported in (2019) 8 SCC 62 is of no help to the appellant. No substantial questions of law arise in this appeal for determination. 8. In view of the aforesaid facts and circumstances of the case, second appeal filed by the appellant is dismissed.