Madhya Pradesh High Court
Raju vs Smt. Rataniya Bai Judgement Given By: ... on 3 January, 2014
S.A.No.912/2013 3/1/2014
Shri R.S.Yadav,learned counsel for the appellants.
Heard on admission.
This second appeal at the instance of plaintiffs is directed against the judgment and decree dated 16.8.2013 passed by the First Additional District Judge, Chindwara in Civil Appeal No.11-A/2013; reversing the judgment and decree dated 30.9.2009 by the trial court in Civil Suit No.44- A/2009.
Parties shall be referred to as they were before the trial Court.
That Smt. Satroopa Tripathi (mother of Appellants who died during pendency of First appeal and is being represented by her legal heirs, the appellants here) filed a Civil Suit for execution of agreement of sale dated 29.5.2004 in respect of the property bearing Khasra No. 353/3 admeasuring 0.33. acre situated at village Boria, Patwari Halka, No.21 S.N. 418 R.C Chindwara , on the ground that the defendants No.1 to 5 had entered into an agreement of sale on 29.5.2004 of the suit property for a sum of Rs.22000/- and when called upon to execute the sale deed had declined to do so. The defendants denied plaint allegation. It was contended that no agreement was entered into between the defendants and plaintiff Smt. Satroopa Tripathi and the document said to be the agreement of sale is a forged document.
Trial Court framed four issues, viz, -
(i) as to whether the plaintiff is entitled for the relief of specific performance of contract dated 29.5.2004 from the defendants no. 1 to 5 in respect of property bearing Kh.No.353/3 area 0.33 Acre
(ii) whether the plaintiff was willing and ready to perform her part of the contract
(iii) whether the suit in tenable and
(iv) the relief and cost.
Parties led their evidence on the basis whereof the trial Court returned the findings in favour of plaintiff and decreed the suit vide judgment and decree dated 30.9.2009. Aggrieved whereby, the defendants preferred first appeal wherein the judgment and decree by the trial Court has been reversed.The present appeal by the plaintiff is directed against the reversal judgment and decree dated 16.8.2013.
The suit as apparent from the impugned judgment and decree has been dismissed on the ground that the plaintiff has failed to prove the execution of agreement of sale dated 29.5.2004. The finding has been arrived on the basis of evidence on record. The appellate Court found that the agreement of sale dated 29.5.2004, the specific performance whereof was being sought was not exhibited and proved. The document exhibited as Ex P/1 said to be the Ikrarnama being of 25/5/2004 was also not pleaded, nor the same was proved as the plaintiff herself has failed to prove any consideration being paid to the defendants. This finding is based on the statement of the plaintiff. In paragraph 9 and 10 of her cross-examination she categorically states that:
"9. eSa ikapoh rd i<+h gwWaA eSa bdjkjukek ugha le>rh gwWaA eSa vuqc/a k i= Hkh ugha ld>rh gwWaA esjs lkeus dksbZ fy[kk i<+h ugha gqbZ FkhA 10- eSa 'kiFk i= le>rh gwWaA eSusa U;k;ky; esa 'kiFk i= ij dksbZ dFku ugha fd;kA eSa fNUnokM+k dh jgus okyh gwWaA cksfj;k esa esjh [krh gSA ;g ckr lgh gS fd ftl tehu laca/k esa eSusa U;k;ky; esa dk;Zokgh fd;k gS ml tehu ij vkt Hkh rstyky dCtk dj dkLr dj jgk gSA Furthermore the first appellate Court has also returned a finding that plaintiff failed to prove the thumb impression of the defendants over the alleged agreement of sale.
That the finding of facts arrived at by the First Appellate Court is based on cogent and material evidence on record and the plaintiff having failed to prove that the findings suffer from the vice of perversity. No substantial question of law arises for adjudication.
The Second Appeal is accordingly dismissed at the admission stage. No costs.
(SANJAY YADAV) JUDGE das