Research › Search › Judgment

Madhya Pradesh High Court · body

2022 DIGILAW 486 (MP)

Lakshmi Bai v. Jagdish

2022-03-26

PRANAY VERMA

body2022
JUDGMENT 1. Learned counsel for the appellants is heard on the question of admission. This appeal under section 100 of the Code of Civil Procedure has been preferred by the defendants/appellants against the judgment and decree dated 22.8.2019 passed in Regular Civil Appeal 8-A/2018 by the Ist Additional District Judge, Narsinghgarh, District Rajgarh affirming the judgment and decree dated 29.1.2018 passed in Civil Suit No.46-A/2016 by the Civil Judge, Class-I, Narsinghgarh, District Rajgarh whereby the claim of plaintiffs/respondents for specific performance of contract dated 14.8.2007 and for permanent injunction has been decreed while the counter claim of defendants for eviction of the plaintiffs from the suit premises had been dismissed. 2. Defendant No.1 Lakshmi Bai is the owner of the suit house No.13-14 total area 1024 sq.feet, ward No.5, Basod Gali, Narsinghar, in which plaintiffs are residing. As per plaintiffs on 14.8.2007 defendant No.1 entered into an agreement with Gulab Bai, their mother, for sale of the suit house in her favour for a total consideration of Rs.45,000/- which was paid in entirety that day itself. A notarized agreement to sale was also executed on that day in which defendant No.2 had also signed as a consentor. It was agreed that whenever Gulab Bai would desire defendant No.1 would execute the requisite sale deed in her favour Gulab Bai and after her plaintiffs have been in possession of the suit house ever since 14.8.2007. Gulab Bai had died on 22.7.2015 and plaintiffs are her legal heirs. 3. Further case of plaintiffs is that subsequent to execution of the agreement Gulab Bai and after her death they repeatedly requested defendants to execute the sale deed with respect to the suit house but they have failed to do so. On 5.7.2015 defendants had refused to execute the sale deed in favour of Gulab Bai pursuant to which she issued a notice on 9.7.2015 which was replied to by defendant No.1 on 16.7.2015 in which the agreement to sale itself was denied by her. On 3.2.2016 defendant No.1 issued a notice to plaintiff No.1 terming him to be a tenant in the suit house and demanded vacant possession. The plaintiffs have always been ready and willing to perform their part of the contract but defendant No.1 has failed to do so and has on the other hand termed them to be tenants in the suit house which has necessitated institution of the suit. The plaintiffs have always been ready and willing to perform their part of the contract but defendant No.1 has failed to do so and has on the other hand termed them to be tenants in the suit house which has necessitated institution of the suit. 4. The defendants contested the plaintiffs' claim by filing their written statement submitting inter alia that no agreement to sale was executed in favour of mother of plaintiffs and instead plaintiffs are their tenants in the suit house at Rs.300/- per month, that they have obtained signatures of defendants on some blank papers by practicing fraud, that they have requested plaintiffs to vacate the suit house on numerous occasions but they have refused to do so and that they are liable to deliver vacant possession of the suit house. The defendants also laid a counter claim for delivery of vacant possession of the suit house by plaintiffs in their favour. The plaintiffs contested the counter claim of defendants by filing their written statement to the same. 5. On the basis of pleadings of the parties issues were framed by the trial Court after which both the parties adduced oral as well as documentary evidence in support of their respective contentions. The trial Court held that the plaintiffs have duly proved the execution of the agreement to sale in favour of Gulab Bai by defendant No.1 that they have always been and are still ready and willing to perform their part of the contract and that defendants have failed to prove that plaintiffs are their tenants in the suit premises and have in any case not pleaded any ground for eviction under section 12 (1) of the M.P. Accommodation Control Act 1961. Consequently, while plaintiffs claim was decreed, the counter claim of the defendants was dismissed. 6. The learned counsel for the appellants submits that the Courts below have committed a gross error of law in upholding the agreement to sale dated 14.8.2007 by defendant No.1 in favour of plaintiffs. The agreement contains numerous over writings and alterations which were not signed upon by the parties hence the document was inadmissible in evidence and totally unreliable. The evidence on record has not been duly appreciated. The document Exhibit D/1 which is a photocopy of the agreement produced by the notary is contradictory to the original agreement Exhibit P/1 which also proved that the same is forged. The evidence on record has not been duly appreciated. The document Exhibit D/1 which is a photocopy of the agreement produced by the notary is contradictory to the original agreement Exhibit P/1 which also proved that the same is forged. Moreover the claim was barred by time but has illegally been decreed by the Courts below. 7. I have heard the learned counsel for the appellants and have perused the record. Both the Courts below have held that plaintiffs have categorically proved the execution of the agreement to sale dated 14.8.2007 by defendant No.1 in favour of Gulab Bai, their mother. This finding has been arrived at on the basis of the material brought on record by both the parties and is a pure finding of fact. The same has not been shown to be illegal or perverse in any manner or having been arrived at on the basis of inadmissible evidence or any evidence not on record. 8. Gangaram, the witness to the agreement has been examined by plaintiffs as PW.7 who has affirmed the same. The notary Bhupendra Kumar Dwivedi in whose presence the document was executed has also been examined as PW.3. The best witness on part of the defendants i.e. defendant No.1 Lakshmi Bai has not been examined them. The signature of Lakshmi Bai on the agreement have been admitted by the defendants who have however failed to prove that the same were obtained by fraud. The defendant No.1 has not denied her thumb impression on the agreement whereas signature of defendant No.2 on the agreement are admitted. In any case, it is defendant No.1 who was the executant of the agreement and defendant No.2 was only a consenter. Denial of any sort by defendant No.1 weighs heavily against the defendants. 9. On the basis of the document Exhibit D/1 the veracity of the agreement Exhibit P/1 is not dented in any manner. A perusal of agreement to sale Exhibit P/1 inspires confidence and the name appears to be a genuine contract of sale of immovable property between the parties thereto. Minor alterations and over writing in the agreement are wholly insufficient for discrediting the entire document which has been signed by both the parties. The contentions of defendants that the agreement is a tampered document hence cannot be accepted. 10. Minor alterations and over writing in the agreement are wholly insufficient for discrediting the entire document which has been signed by both the parties. The contentions of defendants that the agreement is a tampered document hence cannot be accepted. 10. From the evidence adduced by plaintiffs they have satisfactorily proved that they have always been and are still ready and willing to perform their part of the contract. Their contentions are proved from the events as have been brought on record and the Courts below have hence rightly upheld their readiness and willingness. 11. The defendants have not adduced any legally acceptable evidence to show that plaintiffs were inducted in the suit house by them as tenants. The creation of tenancy has itself not been proved by them. Moreover as has already been held that the agreement dated 14.8.2007 has been proved by plaintiffs, their possession over the suit house shall hence be under the said agreement and cannot be termed to be by way of tenancy. There is no rent receipt in favour of defendants nor is their any other evidence to show the status of plaintiffs as tenants. The finding negativing relationship of landlord and tenants between plaintiffs and defendants hence is unassailable. 12. The suit has been instituted by plaintiffs on 22.2.2016. As per them, the defendants refused to execute the sale deed in favour of Gulab Bai, their mother, on 5.7.2015 for the first time. Thus, it is on this day that defendants for the first time refused to execute the sale deed in favour of plaintiffs hence cause of action for institution of suit for specific performance accrued for the first time. The suit instituted by plaintiffs on 22.2.2016 was hence very much within time as per Article 54 of the Limitation Act 1963. 13. Thus, the Courts below have not committed any error of law in decreeing the claim of plaintiffs' for specific performance of contract and permanent injunction and in dismissing counter claim of defendants for possession. The findings and the judgment and decree passed by the Courts below are legal and proper and no interference in the same is called for. No substantial question of law arises for determination in this appeal which is according dismissed in limine.