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2021 DIGILAW 309 (RAJ)

Sona Dwivedi v. Lrs of Bhera

2021-02-08

ARUN BHANSALI

body2021
JUDGMENT 1. This appeal is directed against the judgment & decree dated 22.08.2019 passed by the Additional District Judge No.5, Udaipur, whereby the judgment & decree dated 03.11.2015 passed by the Additional Senior Civil Judge No.2, Udaipur has been upheld. 2. A suit for specific performance of contract dated 29.07.1997 and possession was filed by the plaintiff - Smt. Sona against Bhera in relation to a plot situated at Revenue Village Manwakheda, Tehsil Girwa, District Udaipur. It was, inter-alia, claimed that the plot in question was agreed to be sold for a sum of Rs.45,000/-, for which part consideration of Rs.20,000/- was paid as advance and the sale deed was to be executed within three months. It was claimed that the plaintiff was ready and willing to perform her part of the contract and for the said purpose, she alongwith her husband and father, approached the defendant with the balance consideration and Rs.5,000/- for purchase of stamps and registration fees, however, the defendant failed to perform his part of the contract. Based on the said averments, the suit seeking specific performance of contract and possession was filed. 3. During pendency of the suit, defendant Bhera died and his legal representatives were taken on record. 4. Further on the application filed by Smt. Renu Bhatiya and Kamlesh Kumar for being impleaded as parties, based on prior agreement to sale and transfer, they were impleaded as defendants to the suit. 5. Written statement was filed by Bhera, who denied the execution of the agreement dated 29.07.1997 and receipt of any consideration. It was stated that no cause of action has arisen in favour of the plaintiff based on the agreement dated 29.07.1997. It was indicated that the agreement was fraudulent, no notice was ever given by the plaintiff to him and as such, the aspect of readiness and willingness has not been explained. 6. Further averments were made that on 23.07.1997, agreement was entered into by Bhera with Smt. Renu Bhatiya and Kamlesh Kumar Verma for sale of the plot for a sum of Rs.4,01,000/-, Rs. 1,01,000/- were received as part consideration and when Urban Improvement Trust, Udaipur CUIT') mutated the plot in favour of Bhera on 12.11.2003, by way of power of attorney a sale deed was executed by Bhera on 31.12.2003 in favour of Smt. Renu Bhatiya and Kamlesh Kumar Verma. 1,01,000/- were received as part consideration and when Urban Improvement Trust, Udaipur CUIT') mutated the plot in favour of Bhera on 12.11.2003, by way of power of attorney a sale deed was executed by Bhera on 31.12.2003 in favour of Smt. Renu Bhatiya and Kamlesh Kumar Verma. Whereafter, their names have been entered in the records of the UIT on 06.02.2004. It was prayed that the suit be dismissed. 7. On behalf of the defendants Smt. Renu Bhatiya and Kamlesh Kumar Verma, it was claimed that they had a prior agreement to sale in their favour, based on which, sale deed has been executed in their favour, they were bonafide purchasers and therefore, the suit was liable to be dismissed. 8. The trial court in two trenches framed eight issues. Three issues were framed on 20.03.2004 and five issues were framed on 17.11.2008. 9. On behalf of the plaintiff, two witnesses were examined and 03 documents were exhibited. 10. On behalf of the defendants, four witnesses were examined and 18 documents were exhibited. PW-1 Dharamraj gave statements in rebuttal. 11. After hearing the parties, the trial court came to the conclusion that the plaintiff Smt. Sona did not enter the witness-box, only her power of attorney Dharamraj, her husband was examined, which resulted in the plaintiff not being available for cross-examination in relation to her readiness and willingness to perform her part of the contract. 12. It was further found that as the agreement did not bear the signatures of either the plaintiff or her husband Dharamraj, it was necessary that the plaintiff should have appeared in the witness-box. The Court also noticed the contradictory statements of PW-2 Girdhari Lal and PW-1 Dharamraj with regard to execution of the agreement to sale and the fact as to who introduced Bhera to plaintiff as both Dharamraj and Girdhari Lal denied that they had any prior acquaintance with Bhera. 13. The trial court also gave credence to the statements of Pyarelal son of deceased Bhera, who denied the execution of the agreement to sale dated 29.07.1997 and supported the agreement to sale dated 23.07.1997 and consequently, decided issues pertaining to execution of the agreement, relief pertaining to execution of the sale deed and possession against the plaintiff and the issue pertaining to the validity of the sale in favour of defendant Nos.2 & 3 was also held against the plaintiff. 14. 14. The Court also came to the conclusion that the possession of the plot was never handed over to the plaintiff, it was found that the agreement to sale dated 29.07.1997 was admissible in evidence and in view of the findings recorded on all the issues, the suit was dismissed. 15. Feeling aggrieved, the appellant filed first appeal. The first appellate court, after hearing the parties, redetermined all the issues and affirmed the findings recorded by the trial court and consequently, dismissed the appeal. 16. It is submitted by learned counsel for the appellant that the two courts below committed grave error of law in dismissing the suit and the appeal. It was submitted that both the courts below were not justified in discarding the evidence of PW-1 Dharamraj, husband of the plaintiff, who was holding power of attorney in him favour from the plaintiff by wrongly applying the judgment of Hon'ble Supreme Court in Man Kaur v. Hartar Singh Sangha : (2010) 10 SCC 512 . 17. It was submitted that the said judgment has clearly provided for exception in cases where the affairs of a party are completely managed, transacted and looked-after by an attorney, who may happen to be a close family member e.g. husband/wife, son/daughter, father/mother etc. and as such, the judgments impugned passed by the two courts below give rise to substantial questions of law. 18. Further submissions were made that the evidence was available on record indicating Dharamraj, husband of the plaintiff, being aware of the entire transaction, however, the two courts below have wrongly recorded finding in this regard, which makes the finding perverse and give rise to a substantial question of law. Submissions were also made that the appellate court was not justified in accepting the submissions made on part of the defendants regarding the agreement to sale to be concocted only on account of the fact that two cases had been registered against Dharamraj with similar allegations as the said aspect has not been established in the present case. 19. Submissions were also made that the appellate court was not justified in rejecting the prayer for sending the thumb impression of deceased Bhera for comparison to the Forensic Science Laboratory only on account of the fact that similar application was not filed before the trial court as the said aspect would have clarified unnecessary doubts created by the defendants. 19. Submissions were also made that the appellate court was not justified in rejecting the prayer for sending the thumb impression of deceased Bhera for comparison to the Forensic Science Laboratory only on account of the fact that similar application was not filed before the trial court as the said aspect would have clarified unnecessary doubts created by the defendants. It was prayed that substantial questions of law in this regard be framed and the appeal be admitted. 20. Learned counsel appearing for the respondent Nos. 2 & 3 supported the judgments impugned of the two courts below. It was submitted that both the courts have concurrently come to the conclusion that the plaintiff-appellant has failed to prove the execution of the agreement dated 29.07.1997 and readiness & willingness of the plaintiff and as such, the judgments impugned do not give rise to any substantial question of law and appeal, therefore, deserves to be dismissed. 21. I have considered the submissions made by learned counsel for the parties and have perused the material available on record as well as record of both the courts below. 22. The facts are not in dispute wherein the suit was filed by Smt. Sona seeking specific performance of contract dated 29.07.1997 and possession of the suit property. 23. The averments made in the plaint indicated that Bhera proposed transfer of the property to the plaintiff and after taking part consideration, the agreement was executed in favour of the plaintiff. It was also indicated that the possession of the plot was handed-over to the plaintiff and that on several occasions plaintiff alongwith her husband & her father, approached the defendant for accepting the balance consideration for executing the sale deed. 24. Though, the averments were made in the plaint regarding handing over of the possession to the plaintiff based on the assertion contained in the agreement, still relief was sought for possession of the plot in question and after amendment of the plaint on impleadment of respondent Nos. 2 & 3 as parties to the suit, also the plaint did not indicate any event, by which the plaintiff purportedly lost the possession if it was handed-over to the plaintiff at the time of execution of the agreement. 25. 2 & 3 as parties to the suit, also the plaint did not indicate any event, by which the plaintiff purportedly lost the possession if it was handed-over to the plaintiff at the time of execution of the agreement. 25. After pleadings of the parties, as noticed herein-before were completed, on behalf of the plaintiff, Dharamraj filed his affidavit in evidence as PW-1 based on a power of attorney Ex.-l dated 18.12.2004 and inter-alia, claimed in the affidavit that he was personally aware of the facts as the agreement for the plot, payment of part consideration and subsequent proceedings happened in his presence. 26. Besides the affidavit in evidence of PW-1, husband of the plaintiff, affidavit of PW-2 Girdhari Lal was also produced in evidence. Both the courts below, in view of the fact that the plaintiff Sona Dwivedi herself was not examined and on its finding based on the averments contained in the plaint and the evidence which came on record, that Dharamraj despite being her husband was not competent to depose on her behalf, for lack of appearance by the plaintiff in the witness-box, held against the plaintiff besides, coming to the conclusion against the plaintiff on the merits of the case as well.