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2024 DIGILAW 1402 (RAJ)

Bhom Singh v. Inder Raj S/o Hardev

2024-10-10

NARENDRA SINGH DHADDHA

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JUDGMENT : NARENDRA SINGH DHADDHA, J. 1. By way of this civil first appeal, the appellants-plaintiffs (for short ‘the plaintiffs’) have challenged the judgment and decree dated 13.07.1989 passed by the Additional District & Sessions Judge, Kishangarh Bas, District Alwar (for short ‘the trial court’) in Civil Suit No. 41/1986 titled as Bhom Singh & Anr. Vs. Inder Raj and Anr. and Civil Suit No. 27/1988 titled as Manbhadra Vs. Bhom Singh & Ors. 2. Brief facts of the case are that the plaintiffs purchased a land of khasra No. 454 from defendant No. 1-Inder Raj in a sale consideration of Rs.40,000/- and also executed a written agreement to sell dated 04.06.1986. At the time of executing the written agreement to sell, a sum of Rs. 30,000/- were paid towards sale consideration. There was a condition in the agreement to sell that defendant No. 1-Inder Raj shall redeem the said land by repaying the bank loan. After that, registry was to be done in favour of the plaintiffs. Defendant No. 1-Inder Raj took the balance amount of sale consideration i.e. Rs.10,000/- on 22.06.1986 for repaying the bank loan but he had not executed the registered sale deed in favour of the plaintiffs. The plaintiffs served a notice to the defendant No. 1 but he had not executed the registered sale deed in favour of the plaintiffs. So, the plaintiffs filed a suit for specific performance of the contract against the defendant No. 1. Defendant No. 1 filed written statement and stated that he had not executed any written agreement to sell in favour of the plaintiffs. Rather, he had executed written agreement to sell in favour of defendant No. 2 Manbhadra on 05.04.1986. The defendant No. 1 in his reply also stated that the plaintiffs wrongly mentioned the khasra No. 454 in the written agreement instead of khasra No. 457. The defendant No. 2 Manbhadra filed an application for impleading himself as a party in the trial court and the trial court allowed the said application filed by him. Defendant No. 2-Manbhadra also filed a suit for specific performance and for declaring the agreement to sell dated 04.06.1986 as null and void. The trial court consolidated both the suits and passed the decree in favour of the plaintiffs for land bearing Khasra No. 457 and in favour of Manbhadra for land bearing Khasra No. 454. 3. Defendant No. 2-Manbhadra also filed a suit for specific performance and for declaring the agreement to sell dated 04.06.1986 as null and void. The trial court consolidated both the suits and passed the decree in favour of the plaintiffs for land bearing Khasra No. 457 and in favour of Manbhadra for land bearing Khasra No. 454. 3. On the pleadings of the parties, the trial court framed the following issues: “1. Whether the agreement to sell dated 04.06.1986 executed by defendant Inder Raj in favour of the plaintiffs Bhom Singh and Ram Niwas, was in respect of land of Khasra No. 457 and not in respect of land of Khasra No. 454? 2. Whether defendant Inder Raj was not paid the balance amount of Rs. 10,000/- in furtherance of agreement to sell dated 04.06.1986? 3. For what relief the parties are entitled to?” 4. To prove his case, defendant Inder Raj examined himself as DW-1 and to prove his case, defendant No. 2 Manbhadra examined himself as DW-2/1, Gulabchand DW-2/2, Vijay Singh DW-2/3 and Devi Singh as DW-2/4. 5. To prove their case, the plaintiffs examined PW-1 Bhom Singh, PW-2 Rameshwar Dayal, PW-3 Ram Kumar, PW-4 Bhola Nath Sharma, PW-5 Raghuvir, PW-6 Pyarelal and PW-7-Joharilal. 6. Learned senior counsel for the plaintiffs submits that the trial court wrongly decided the issue No. 1 in favour of defendant No. 2. Learned senior counsel for the plaintiffs further submits that the plaintiffs as well as defendant No. 2 filed the suits for the land of khasra No. 454. It was the contention of the defendant No. 1-Inder Raj that the plaintiffs had wrongly mentioned the khasra No. 454 instead of khasra bearing No. 457. Learned senior counsel for the plaintiffs also submits that there was no written agreement regarding land of khasra No. 457. The trial court wrongly came to the conclusion that the plaintiffs had entered into the agreement in relation to land of khasra No. 457. Learned senior counsel for the plaintiffs also submits that defendant No. 1-Inder Raj had given the evidence against the documentary evidence i.e. Exhibit-1 and the trial court wrongly appreciated the evidence of defendant No. 1-Inder Raj. Learned senior counsel for the plaintiffs further submits that land of khasra No. 457 is measuring 14 biswas, whereas the agreement between plaintiffs and defendant No. 1 was for 10 Biswas. Learned senior counsel for the plaintiffs further submits that land of khasra No. 457 is measuring 14 biswas, whereas the agreement between plaintiffs and defendant No. 1 was for 10 Biswas. Learned senior counsel for the plaintiffs also submits that the plaintiffs had filed under Order 41 Rule 27 C.P.C. in which the trial court convicted the defendants for the offences under Sections 148, 451, 323, 323/149, 325/149 and 324/149 IPC but the said judgment was not placed before the trial court. So, in the interest of justice, these documents may be taken on record. These documents prove the possession of the plaintiffs on the disputed khasra. Learned senior counsel for the plaintiff further submits that the trial court had to examine the genuineness of the agreement to sell (Exhibit-1) which was executed between the plaintiffs and the defendant No. 1 and also had to examine the genuineness of agreement to sell (Exhibit A-1) which was executed between the defendant No. 1 and defendant No. 2. 7. Learned senior counsel for the plaintiffs further submits that the trial court has not appreciated the evidence in the right perspective. The trial court had to decide the genuineness of these written agreements instead of passing the decree for specific performance of the contract of land of khasra No. 457. The trial court had to pass the decree either in favour of the plaintiffs or in favour of the defendant No. 1 by not considering the land of khasra No. 457 because present land dispute was regarding the specific performance of contract of land of Khasra No. 454. So, judgment and decree dated 13.07.1989 passed by the trial court be set-aside and appeal filed by the plaintiffs be allowed. 8. Learned counsel for the defendants has opposed the arguments advanced by learned senior counsel for the plaintiffs and submitted that the trial court rightly came to conclusion that the plaintiffs had wrongly mentioned the khasra bearing No. 454 in the written agreement (Exhibit-1). The written agreement of the defendant No. 2 with defendant No. 1 is prior to the written agreement executed by the plaintiffs with the defendant No. 1. So, the trial court has rightly passed the decree in favour of the defendant No. 2 for land of Khasra No. 454. So, the present appeal being devoid of merit, is liable to be dismissed. 9. So, the trial court has rightly passed the decree in favour of the defendant No. 2 for land of Khasra No. 454. So, the present appeal being devoid of merit, is liable to be dismissed. 9. I have considered the arguments advanced by learned counsel for the plaintiffs as well as learned counsel for the defendants. 10. It is an admitted position that both the agreements Exhibit-1 and Exhibit-A-1 were of khasra Nos.454 not of Khasra No. 457. The plaintiffs filed a suit for specific performance of contract dated 04.06.1986 against the defendant No. 1. The defendant No. 2 filed a suit for specific performance of contract of Khasra No. 454. Disputed property in present both the suits was of Khasra bearing No. 454 and not Khasra No. 457. In my considered opinion, the trial court while appreciating the evidence of the parties had to give finding regarding genuineness of the written agreements Exhibit-1 and Exhibit-A-1. The trial court had passed the decree regarding specific performance of contract of Khasra No. 457 in favour of the plaintiffs, which is beyond the jurisdiction of the trial court because subject matter was not regarding land of Khasra No. 457. None of the parties had claimed the specific performance of the contract of the land of Khasra No. 457. The plaintiffs had also filed the documents to prove in possession on the land of Khasra No. 457. So, in my considered opinion, finding of the trial court regarding issue No. 1 is not sustainable in the eye of Law. Hence, I deem it fit to remand the matter to the trial court for afresh adjudication. So, the appeal filed by the plaintiffs deserves to be allowed. 11. The appeal as well as application under Order 41 Rule 27 Cr.P.C. filed by the plaintiffs is allowed. The documents annexed with the application are taken on record. The judgment and decree dated 13.07.1989 passed by the trial court is set-aside and trial court is directed to decide the suit afresh after hearing both the parties, in accordance with Law, within three months from the date of receipt of a certified copy of this order. 12. Pending application, if any, also stands disposed of.