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2020 DIGILAW 682 (MP)

Ram Swaraup (Dead) v. Baldeo Prasad

2020-06-12

J.P.GUPTA

body2020
JUDGMENT J.P.Gupta, J. - This second appeal has been preferred against the judgment and decree dated 10/07/2001 passed by the Additional District Judge, Maihar District Satna in Civil Appeal No. 67-A/1997 confirming the judgment and decree dated 20/10/1997 passed by the Civil Judge Class I Maihar in Civil Suit No. 28-A/1987 directing the applicant to execute the sale deed of the disputed land in favour of the applicant. 2. This appeal has been admitted vide order dated 26/11/2001 on the following question of law:- "Whether in the facts and circumstances of the case, grant of decree of specific performance in respect of Khasra No.2282 has been arbitrary and purverse when the agreement dated 26/08/1986 (Ex.P-4) on record did not contain any specific term for consideration and further when no decree was granted in respect of Khasra No. 1451 and 1452 ? 3. In this case these are admitted fact that the appellant/defendant father late Jagat Deo Patel was the owner of agricultural land bearing Survey No. 2282, Area 3 Beegha and 1 Biswa situated in village Jariyari Tehsil Maihar, District Satna. Jagat Deo Patel soled out the aforesaid land to the appellant by registered sale deed dated 28th June 1976 and handed over the possession to the appellant. Later on this land was sold out by the District Cooperative Land Development Bank, Branch Maihar, by public auction as it was mortgage by late Jagat Deo Patel. The land was purchased by the appellant and on 31st March 1986 and a sale certificate was issued in his favour. On the basis of the sale certificate he initiated proceeding before the Revenue Court for mutation in which the respondent/plaintiff filed objection and in last on the basis of settlement between the respondent/plaintiff and appellant/defendant, the land was mutated in the name of appellant/defendant. The appellant/defendant also took possession of the land through Revenue Court. 4. On the basis of the sale certificate he initiated proceeding before the Revenue Court for mutation in which the respondent/plaintiff filed objection and in last on the basis of settlement between the respondent/plaintiff and appellant/defendant, the land was mutated in the name of appellant/defendant. The appellant/defendant also took possession of the land through Revenue Court. 4. The case of the plaintiff/respondent is that the appellant/defendant's father sold the aforesaid land without disclosing the fact that the land was mortgaged to the Bank and on account of non-payment of the loan taken by Jagat Deo Patel, the land was auctioned and the aforesaid fact came into notice for the first time on getting notice from the Revenue Court with regard to the proceeding of mutation and when the objection was taken in the mutation proceeding the matter was settled on the terms that after mutation in favour of the appellant/defendent, he would have got the sale deed executed in relation of aforesaid land and other land bearing Survey No. 1451 and 1452 situated in the same village in consideration of the amount already taken by the father of the appellant and Rs.6000/- taken by the appellant as loan by mortgaging other land through unregistered document and the possession of that land was also taken and in this regard an agreement Ex.P-4 was executed by the appellant, but the applicant has denied to execute the sale deed in favour of the plaintiff/respondent, therefore he filed a suit before the trial court for specific performance of the contract. 5. The appellant/defendant defended the suit and replied that the appellant/defendant had not executed any agreement in favour of the plaintiff/respondent and the document titled "Ikrarnama" is forged document. He never received Rs.6000/- as a loan by mortgaging of his other lands. Apart from it, on the basis of the said agreement the plaintiff/respondent is not entitled to get any relief of specific performance of the contract as there is no specific description about the consideration and in absence of any consideration any agreement is not enforceable being a contract. 6. Apart from it, on the basis of the said agreement the plaintiff/respondent is not entitled to get any relief of specific performance of the contract as there is no specific description about the consideration and in absence of any consideration any agreement is not enforceable being a contract. 6. Learned Trial court after trial arrived at the conclusion that the father of the appellant Late Jagat Deo Patel sold the land to the plaintiff/respondent without disclosing the fact of mortgaging the land to the Bank and on 26th June, 1986 the agreement Ex.P-4 was executed by the appellant/defendant with regard to the sale deed executed in favour of the plaintiff after completion of the mutation proceeding and the plaintiff is entitled to get the relief of specific performance of the contract of the sale with regard to only land bearing Survey No.2282 as the appellant/defendant was not owner of the land Survey No. 1451 as it was already sold to other person on the date of the agreement and so far land bearing Survey No. 1452 is concerned there is no evidence to pay the consideration, therefore learned trial court decreed the suit with regard to only the land bearing Survey No. 2282 and the first appellate court also confirmed the aforesaid finding and relief, hence this second appeal. 7. On behalf of the appellant/defendant the substantial objection is that in connection with Survey No. 1451 and 1452 the judgment and decree of the learned trial court has not been challenged by the plaintiff/respondent and the learned trial court rejected the suit of the plaintiff with regard to the land bearing Survey No. 1452 on the ground that in the agreement, the price of the land is not mention while this condition also apply in respect of land bearing Survey no. 2282. As the condition for rejecting the suit with regard to land bearing Survey No. 1451 and 1452 equally apply with regard to the land bearing Survey No. 2282, the judgment and decree of both courts below are arbitrary and pervert. 8. 2282. As the condition for rejecting the suit with regard to land bearing Survey No. 1451 and 1452 equally apply with regard to the land bearing Survey No. 2282, the judgment and decree of both courts below are arbitrary and pervert. 8. Learned counsel for the appellant has also raised the objection that learned first appellate court did not decided the appeal by adhering to statutory procedure of Order 41 Rule 31 of the C.P.C. Therefore without entering into merit the impugned judgment and decree passed by First Appellate Court be set aside and the case be send for re-hearing and in this regard reliance has been placed on the judgment of the Apex Court in the case of United Engineers & Contractors Vs. Secretary to Government of Andhra Pradesh & others, (2014) 16 SCC 109 , C. Venkata Swamy Vs. H.N. Shivanna (dead) & another, (2018) 1 SCC 604 , and Sudarsan Puhan Vs. Jayanta Ku. Mohanty and others, (2019) 3 MPLJ 13 . 9. Learned counsel appearing on behalf of the respondent submitted that it is concurrent finding of both courts below that the appellant/defendant entered into an agreement Ex.P-4 in which he had categorically admitted the fact that he had already received the price of the aforesaid land, therefore it can't be said that there was no mention of the consideration in the agreement and learned both courts below have rejected the prayer of the plaintiff with regard to land bearing Survey No.1451 on the ground that it was already sold by the applicant to another person before the date of agreement, therefore he is not the owner of the land and he can't sell further the same. This condition is not applicable in connection with land bearing Survey No. 2282. So far the land bearing Survey No. 1452 is concerned, there is admission in the agreement with regard to the receiving of the consideration but the learned trial court arrived at the conclusion that there is no specific averment of the amount while with regard to Survey no. So far the land bearing Survey No. 1452 is concerned, there is admission in the agreement with regard to the receiving of the consideration but the learned trial court arrived at the conclusion that there is no specific averment of the amount while with regard to Survey no. 2282 there is description in earlier sale deed dated 26/06/1976 about the consideration, therefore, the admission can be read in the light of the earlier sale deed and on that reason learned trial court has rejected the prayer of the plaintiff with regard to the aforesaid land, therefore the reasoning given by the learned trial court in connection with the land bearing Survey No. 1452 does not apply with regard to the land bearing Survey No. 2282. In view of the circumstance, it can't be said that the judgment and decree of both court below are arbitrary or pervert. Hence the appeal be rejected. 10. Having considered the contention of the learned counsel for the parties and on perusal of the record, in view of this Court so far legal principle laid down in the aforesaid judgments of the Apex Court is concerned, they are related to the duties of the first appellate court and if first appellate court failed to dispose of appeal in conformity of the procedure prescribed under Order 41 Rule 31 of the C.P.C the case should be remanded to the first appellate court for re-hearing but so far present case is concerned, this Court finds that learned first appellate court has dealt with the objection of the appellant/defendant by independent re-appreciation of the evidence and no injustice has been caused to the appellant/defendant. The objection with regard to the factual dispute was related to the finding of the execution of the agreement Ex.P-4 by the appellant/defendant. The appellate court has considered the material on which the learned trial court arrived at the conclusion and also gave it's own reasoning by way of comparison of the signature of the applicant with other admitted signature on other documents. Similarly, this Court has also gone through the evidence on this point. The signature of the applicant/defendant on Ex.P-4 has been proved by two independent witnesses namely Ashok (PW-2) and Siya Sharan (PW-3). Therefore, no purpose will be served by sending the case to the first appellate court for re-hearing. 11. Similarly, this Court has also gone through the evidence on this point. The signature of the applicant/defendant on Ex.P-4 has been proved by two independent witnesses namely Ashok (PW-2) and Siya Sharan (PW-3). Therefore, no purpose will be served by sending the case to the first appellate court for re-hearing. 11. Apart from it, on behalf of the appellant no such objection has been taken in his memo of appeal. However the aforesaid ground is mixed question of facts and law, therefore the same can be raised during the hearing of the appeal but as discussed above, the objection has no merit. Hence the aforesaid objection is rejected. 12. Having considered the contention of the learned counsel for the parties and on perusal of the record, in view of this Court the finding of both courts below are not arbitrary or pervert on the ground of rejection of the plaintiff's suit with regard to the land bearing Survey No.1451 and 1452. So far the land bearing Survey No.1451 is concerned, it is found that on the date of the agreement dated 26th August, 1986 the appellant/defendant was not the owner of the land and the land was already sold to another person before the date of the agreement. So far the land bearing Survey No. 1452 is concerned, the prayer of the plaintiff has been rejected on the ground that there was no specific averment with regard to consideration for sale of the land and with regard to land bearing Survey No. 2282 it is found that in the sale deed dated 28/06/1976 the consideration was mentioned and in the agreement it was admitted that consideration has already been taken earlier. If the agreement and condition are looked in the light of the circumstance of the case, it is clear that the applicant admitted to receive the consideration which was already taken by his father and this admission complete the essential ingredient of the contract pertaining to consideration for sale of the land bearing Survey No. 2282. This view of the courts below can't be said to be illegal, arbitrary or pervert. So far land bearing Survey No.1452 is concerned about which there is no clarity in description about the amount of the consideration specifically of that land. This view of the courts below can't be said to be illegal, arbitrary or pervert. So far land bearing Survey No.1452 is concerned about which there is no clarity in description about the amount of the consideration specifically of that land. In such situation, if the learned trial court rejected the prayer with regard to the aforesaid land it can't be said that the view taken by the learned trial court with regard to the land bearing Survey No. 2282 is illegal or wrong and it can't be termed in any way as pervert or arbitrary. 13. It is true that in agreement Ex.P-4 there is no specific and separate description of the consideration with regard to each survey number but merely on this ground, it can't be said that agreement is not executable while considering other circumstances, the intention of the parties in respect of the consideration has been established. 14. In view of the aforesaid discussion, the learned courts below have not committed any error in partly decreeing the plaintiff/defendent suit. Hence this appeal being devoid of merit is dismissed with cost. 15. A copy of the judgment and the decree along with the record be sent to the trial court for compliance.