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2023 DIGILAW 1811 (RAJ)

Meera Meena, W/o. Shri Kumbharam Meena v. Hanju Devi, W/o. Bajaji

2023-09-21

NARENDRA SINGH DHADDHA

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JUDGMENT : 1. Instant appeal has been filed by the appellant-plaintiff (for short ‘the plaintiff’) against judgment and decree dt. 11.8.2016 passed by Additional District Judge No.2, Sikar in Civil Regular Suit No.(140/2008) 218/2009 whereby suit filed by the plaintiff for specific performance, cancellation of sale deed dt.7.9.2006 and permanent injunction has been dismissed. 2. Brief facts of the case are that plaintiff filed a suit for specific performance, cancellation of sale deed dt. 7.9.2006 and permanent injunction against the respondents-defendants (for short ‘the defendants’) stating therein that defendant No.1 was having 2/5th share in the land of khasra No.151 to 157 and 154/3847 measuring Rakbha 23.8500 hectare and she was also having khatedari rights in the land of khasra no.161, 162, 163 and 164 measuring rakbha 2.1300 hectare situated in Village Khatushyam Ji Tehsil Dantaramgarh, District Sikar. On 5.7.2006, defendant No.1 had entered into an agreement to sell with the plaintiff to sale the aforesaid land for a sale consideration of Rs.29,52,001/-and executed the same on five non-judicial stamp papers of Rs.20/-each, got notarized them from Notary Public at Sumerpur and handed over the possession of the land to the plaintiff. It was further mentioned that it was agreed that registry thereof shall be done in favour of plaintiff at Ramgarh but due to greediness, the defendant No.1 sold the land in question to the defendant No.2 by two registered sale deeds dt. 7.9.2006. It was prayed that defendant No.1 was incompetent to handover the possession of the land in question to defendant No.2 because defendant had already executed an agreement to sell in favour of the plaintiff, so suit of the plaintiff be decreed. 3. Defendant No.1 had filed the written statement and denied the averments of the plaintiff stating that she had not executed any agreement to sell dt. 5.7.2006 in favour of the plaintiff and had not received any sale consideration of Rs.29,52,001/-and she had not handed over the possession of the land in question to the plaintiff. She further stated that she had sold the disputed land by two registered sale deed dt. 7.9.2006 to defendant No.2 and handed over the possession to him. Defendant No.1 also stated in the written statement that her brother and some other person had forgedly prepared the said agreement to sell dt. 5.7.2006 on the pretext of sanctioning loan and government aid. 7.9.2006 to defendant No.2 and handed over the possession to him. Defendant No.1 also stated in the written statement that her brother and some other person had forgedly prepared the said agreement to sell dt. 5.7.2006 on the pretext of sanctioning loan and government aid. Defendant No.2 had filed the separate written statement and stated that he is bona-fide purchaser so suit filed by the plaintiff be dismissed. 4. Learned trial court has framed the following issues on the basis of pleadings of the parties:- (1) Whether on 5.7.2006 the defendant No.1 had executed an agreement to sell in favour of the plaintiff with regard to agricultural land situated in village Khatushyam Ji Tehsil Dantaramgarh, District Sikar, as described in para no.1 of the plaint for a sale consideration of Rs.29,52,001/-on five non judicial stamp papers of Rs.20-20 each and got it notarized the same from notary public? For this reason, the plaintiff is entitled for specific performance of the said agreement to sell. 2. Whether from inception, the plaintiff was ready and willing to comply the agreement to sell dt. 5.7.2006? 3. Whether defendant No.1 illegally and unauthorizedly had executed an agreement to sell in favour of the defendant No.2 with regard to agricultural land, as described in para no.1 of the plaint, for which agreement to sell had already been executed in favour of the plaintiff on 5.7.2006 and for this reason, it was liable to be cancelled? 4. Whether the plaintiff was entitled to get decree of permanent injunction against the defendant in relation to disputed agricultural land? 5. Whether the plaintiff’s suit was filed on sufficient court fees? 6. Whether on paying the sale consideration, the defendant No.2 was bona fide purchaser and for this reason, suit against him was not maintainable? 7. Whether each of the defendant was entitled to get Rs.10,000/-from the plaintiff as special cost? 8. Relief? 5. To prove her case, plaintiff examined herself as PW-1 and also got examined witnesses Phoolchand Meena (PW-2), Dhanaram (PW-3), Ramnarayan Jat (PW-4), Kumbharam Meena (PW-5), Jabbar Singh (PW-6), Ganpat Singh (PW-7), Jayanti Lal (PW-8) and exhibited document Ex.1 to Ex.5. Defendants got examined Smt. Hanja Devi as DW-1 and Ramavatar as (DW-2) and exhibited Ex.A-1 to Ex.A-11. 6. Learned Senior counsel for the plaintiff submits that trial court wrongly decided the issues No.1 to 4 in favour of the defendants and against the plaintiff. Defendants got examined Smt. Hanja Devi as DW-1 and Ramavatar as (DW-2) and exhibited Ex.A-1 to Ex.A-11. 6. Learned Senior counsel for the plaintiff submits that trial court wrongly decided the issues No.1 to 4 in favour of the defendants and against the plaintiff. He also submits that judgment of the trial court is contrary to law and facts of the case, so, judgment of the trial court deserves to be set aside. He further submits that defendant No.1-Smt. Hanja Devi had put her thumb impression on stamp paper of agreement to sell but she had taken the plea of fraud by her brother and some other persons in her pleadings. So, burden to prove the same was on Smt. Hanja Devi but Smt. Hanja Devi, had not adduced any evidence regarding fraud. He further submits that Smt. Hanja Devi in her written statement stated that her thumb impression was obtained on stamp paper on the pretext of sanctioning loan and government aid. She did not disclose the name of her brother and other persons in the written statement but during the evidence she had first time disclosed the name and levelled the allegations against her brother Juhara Ram and other persons Um Singh and Jabbar Singh. He also submits that defendant No.1 Smt. Hanja Devi was 83 years old and she had 48 bighas of land in her name. She had no issue, so, there was no need for any loan and government aid. She had concocted the said story to frustrate the agreement to sell executed by her in favour of the plaintiff. He also submits that plaintiff proved the execution of the agreement to sell dt. 5.7.2006 by adducing the evidence. He further submits that plaintiff had adduced the evidence of PW-7 Ganpat Singh who had notarised the agreement to sell and PW-8 Jayanti Lal who sold the stamps in the name of defendant No.1-Smt. Hanja Devi. He further submits that plaintiff had proved the sale consideration of Rs.29,52,001/-paid by her. He further submits that defendant No.1 had not denied her thumb impression and photo affixed on the agreement to sell. There was no need to prove the agreement to sell because said agreement to sell was automatically proved by admitting thumb impression and photo on the document. He further submits that defendant No.1 had not denied her thumb impression and photo affixed on the agreement to sell. There was no need to prove the agreement to sell because said agreement to sell was automatically proved by admitting thumb impression and photo on the document. He further submits that trial court wrongly tried to make agreement suspicious/untrustworthy and wrongly came to the conclusion that the signature of the plaintiff on plaint, statement, power and other documents did not match. He also submits that if trial court had any confusion/suspicion regarding signature of the plaintiff then trial court should obtain handwriting expert report instead of comparing signatures u/s 73 of the Evidence Act. He also submits that defendant No.1 had not lodged any FIR against misuse of the stamp papers. 7. Learned Senior counsel for the plaintiff also submits that trial court wrongly decided the issue No.2 regarding readiness and willingness against the plaintiff. He also submits that after payment of the whole amount, registry of the disputed land was to be done. So, plaintiff rightly filed the suit for specific performance. He further submits that trial court had exceeded his jurisdiction in deciding the case observing that the disputed properties are situated at Khatushyam Ji Tehsil Dantaramgarh, District Sikar whereas Plaintiff as well as defendants are not residing at Sumerpur, therefore, so called agreement to sell could not be executed at Sumerpur. He further submits that trial court wrongly gave finding that someone is behind the plaintiff. He further submits that defendant No.1 had sold the disputed land to respondent No.2 inspite of existence of the agreement to sell dt. 5.7.2006. So, trial court wrongly gave finding in favour of the defendant No.2 that he was bona fide purchaser. 8. Learned Senior counsel for the plaintiff further submits that trial court wrongly observed that plaintiff had inserted last para on page No.3 of the agreement after execution of the document. He also submits that trial court wrongly disbelieved the agreement on account of the fact that name of the plaintiff was written with ink and rest of the words were typed. So, finding of the trial court be set aside and suit filed by the plaintiff be allowed and agreement to sell dt. 5.7.2006 be cancelled. 9. He also submits that trial court wrongly disbelieved the agreement on account of the fact that name of the plaintiff was written with ink and rest of the words were typed. So, finding of the trial court be set aside and suit filed by the plaintiff be allowed and agreement to sell dt. 5.7.2006 be cancelled. 9. Learned Senior counsel for the plaintiff has relied upon the judgment of the Hon’ble Supreme Court in the case of Grasim Industries Limited and anr. vs. Agarwal Steel reported in (2010) SCC 83; Bishundeo Narain and Anr. vs. Seogeni Rai and ors. reported in AIR 1951 Supreme Court 280. He also relied upon the judgment of this court in the case of Radhey Shyam vs. Smt. Prem Kanta in S.B. Civil Second Appeal No.170/1971 decided on 16.4.1982. 10. Learned counsel for the defendants has opposed the arguments advanced by learned counsel for the plaintiff and submitted that trial court rightly came to the conclusion and rightly dismissed the suit filed by the plaintiff. He also submits that plaintiff failed to prove the so called agreement to sell dt. 5.7.2006 because defendant No.1-Smt. Hanja Devi in her statement clearly stated that thumb impression was obtained by her brother Juhara Ram and others namely Um Singh and Jabhar Singh on the pretext of sanctioning loan and government aid. He further submits that trial court rightly observed that so called agreement is suspicious because last line of page No.3 of the purported agreement were typed from a different typewriter after the execution of the documents because words in the aforesaid line were typed from a different typewriter. The aforesaid line was created by typing over the thumb impression of Smt. Hanja Devi. He further submits that whole agreement was typed but the name of plaintiff-Smt. Meera Devi was written by ink. He further submits that trial court rightly came to the conclusion that since disputed property was situated at Khatushyam Ji and none of the parties reside at Sumerpur, so, execution of the purported agreement to sell became doubtful. He further submits that plaintiff in her cross examination clearly stated that she did not know that Smt. Hanja Devi had sold the disputed property to someone else. Plaintiff as well as her witnesses did not know the witnesses of the so called agreement to sell. He further submits that plaintiff in her cross examination clearly stated that she did not know that Smt. Hanja Devi had sold the disputed property to someone else. Plaintiff as well as her witnesses did not know the witnesses of the so called agreement to sell. He also submits that plaintiff had to prove her case but the plaintiff could not take advantage of weakness of the defendant. Plaintiff had not proved payment of sale consideration. He also submits that when plaintiff had paid entire sale consideration at the time of execution of the so called agreement dt. 5.7.2006 and handed over the possession, then nothing was left to be done. Plaintiff in her evidence stated that suit property was handed over at the time of execution of the agreement to sell. It is contrary because suit property is situated at Khatushyam Ji and so called agreement was executed at Sumerpur. So, possession cannot be delivered at the time of the agreement to sell. He also submits that when possession was given then registration was mandatory. He also submits that as per contention of the plaintiff, defendant No.1 had also executed power of attorney in favour of Shrawan but document Ex. A-2 did not bear the signature of the Shrawan. So, said power of attorney had no value. He also submits that said power of attorney was also said to be executed on the same date when so called agreement to sell was executed. So, these documents are suspicious and thumb impression of Smt. Hanja Devi was obtained them by fraud. He also submits that trial court rightly came to the conclusion that defendant No.2 is bona fide purchaser because he did not know existence of the previous agreement to sell and previous agreement to sell was not proved. So, trial court rightly dismissed the suit filed by the plaintiff. So, present appeal being devoid of merit, liable to be dismissed. 11. I have considered the arguments advanced by learned counsel for the plaintiff as well as learned counsel for the defendants. 12. Learned trial court dismissed the suit filed by the plaintiff on account of the fact that the plaintiff failed to prove the so called agreement to sell dt. 5.7.2006. 11. I have considered the arguments advanced by learned counsel for the plaintiff as well as learned counsel for the defendants. 12. Learned trial court dismissed the suit filed by the plaintiff on account of the fact that the plaintiff failed to prove the so called agreement to sell dt. 5.7.2006. Defendant No.1-Smt. Hanja Devi in her statement categorically stated that her thumb impression was obtained on so called agreement to sell on the pretext of sanctioning loan and government aid. It is an admitted position that disputed property is situated at Khatushyam Ji. None of the parties of the agreement to sell reside at Sumerpur. Plaintiff resides at Sawaimadhopur and defendant No.1 resides at Jalore. So, it is suspicious that so called agreement to sell was executed at Sumerpur. No explanation was furnished by the plaintiff and her witnesses in evidence regarding execution of agreement to sell at Sumerpur. Plaintiff in her cross examination clearly stated that she did not know whether Smt. Hanja Devi had sold the disputed property to someone else or others. Smt. Meera Devi and her witnesses did not know the witnesses of the so called agreement to sell namely Um Singh and Jabbar Singh. Plaintiff also failed to prove sale consideration of Rs.29,52,001/-paid to the defendant No.1. Learned trial court observed that signatures of the plaintiff were different on plaint, statement, power filed by her and other documents. So, trial court rightly gave finding that someone is behind the curtain. The contention of the plaintiff, when whole amount was paid at the time of agreement to sell then nothing was left to be done is not sustainable because, in my considered opinion, if plaintiff was bona-fide purchaser, then whole amount should be paid at Khatushyamji where the property is situated and registry should be done simultaneously then and there. The contention of the plaintiff that she had received possession of the land in question at the time of execution of the agreement to sell is entirely contrary to the evidence because it was not possible to hand over the possession at the time of execution of the agreement because distance from Sumerpur to Khatushyam Ji was more than 700 km. Trial court rightly came to the conclusion that last line of page No.3 of the agreement was typed from different typewriter after the execution of the documents and the aforesaid line was created by typing over the thumb impression of the defendant-Smt. Hanja Devi. It is also surprising that name of the plaintiff was written with the ink while all other words were typed. Plaintiff with the connivance of the others also executed fake power of attorney of Smt. Hanja Devi in favour of Shrawan as Exhibit A-2, but said power of attorney did not bear the signature of Shrawan. Stamp papers of the said power of attorney were in continuation of the stamp papers of the so called agreement to sell. So, in my considered opinion, trial court had not committed any error in dismissing the suit filed by the plaintiff. So, present appeal being devoid of merits, is liable to be dismissed which stands dismissed accordingly. 13. Pending applications, if any, also stand disposed of.