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Madhya Pradesh High Court · body

2025 DIGILAW 503 (MP)

Pritam Ashwani v. Om Prakash Raichandani

2025-08-18

DWARKADHISH BANSAL

body2025
ORDER 1. This second appeal has been preferred by the appellant/plaintiff challenging the judgment and decree dated 24.4.2025 passed by 3rd Addl. Judge to the Court of 1st District Judge, Bhopal in RCA no.59/2025 affirming the judgment and decree dated 31.1.2005 passed by 18th Civil Judge Senior Division, Bhopal in RCSA No.310/2022, whereby both the Courts below have concurrently dismissed the suit for specific performance of an agreement of sale dated 25.12.2019 (Ex.P/1). 2. Learned senior counsel for the appellant/plaintiff submits that by way of agreement dated 25.12.2019 (Ex.P/1), the defendant 1 entered into an agreement to sell his house to the plaintiff and on the date of agreement itself entire amount was paid by the plaintiff to the defendant 1 and in turn, the defendant 1 also delivered possession to the plaintiff of the house, however, after executing agreement of sale it was agreed that whenever the plaintiff wants the sale deed shall be executed in his favour. He submits that just contrary to the terms and conditions of the agreement, the defendant 1 illegally sold the house to defendant 2 vide registered sale deed dated 28.10.2021 and pursuant thereto the defendant 2 dispossessed the plaintiff from the house, resultantly the plaintiff instituted the suit on 15.3.2022 seeking specific performance of agreement of sale and Courts below merely on the premise that there is no mention of sale consideration in the agreement, committed an illegality in dismissing the suit, whereas passing of sale consideration has been admitted by the defendant 1 in his oral testimony by saying that he received an amount of Rs.50 Lacs (Rs. Fifty lacs) from the plaintiff and lateron, he returned an amount of Rs.20 Lacs (Rs. Twenty lacs) and an amount of Rs.30 Lacs (Rs. Thirty lacs) is remaining to be paid to the plaintiff. He also submits that since on the date of agreement itself all the title documents were handed over by the defendant 1 to the plaintiff and the same have been produced before the trial Court by the plaintiff himself, therefore, it should have been presumed that in fact the agreement of sale was executed by defendant 1 in favour of the plaintiff. With this background, he submits that the Courts below ought to have granted decree of specific performance. With these submissions, he prays for admission of the second appeal. 3. With this background, he submits that the Courts below ought to have granted decree of specific performance. With these submissions, he prays for admission of the second appeal. 3. Heard learned counsel for the appellant/plaintiff and perused the record. 4. Undisputedly, the agreement of sale (Ex.P/1) does not mention as to what was the sale consideration, which is necessary ingredient of sale as defined in section 54 of the Transfer of Property Act, 1882. Although, in the plaint it has been mentioned that sale consideration was fixed at Rs.35 Lacs (Rs. Thirty Five lacs), but in absence of any recital in the agreement of sale about consideration, the same cannot be relied upon and even the alleged admission made by defendant 1 regarding receipt of sale consideration of Rs.50 Lacs (Rs. Fifty lacs), cannot be considered as a consideration of sale for passing decree of specific performance. Both the Courts below have considered the aforesaid aspect of the matter and refused to exercise discretion of granting decree of specific performance. 5. Although, the plaintiff has come with the case that on the date of execution of agreement of sale, the plaintiff was delivered possession, but upon due consideration of the oral and documentary evidence available on record and coupled with the order passed in the proceedings of section 145 Cr.P.C, Courts below have concluded that the plaintiff was not delivered possession in pursuance of the agreement of sale. 6. It is well known fact that in a suit for specific performance, the property as well as consideration of sale should be specific, but here in the present case, no consideration of sale is mentioned in the agreement, which makes the agreement to be illegal and doubtful. 7. In view of the aforesaid discussion and upon due consideration of the entire material available on record, this Court does not find any illegality in the concurrent judgment and decree passed by Courts below dismissing the suit for specific performance. 8. Resultantly, in absence of any substantial question of law, this second appeal fails and is hereby dismissed. 9. Pending application(s), if any, shall also stand disposed of.