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Smt.Ringan Bai Vs. Ramkumar and ors. - Court Judgment

SooperKanoon Citation

Court

Madhya Pradesh High Court

Decided On

Appellant

Smt.Ringan Bai

Respondent

Ramkumar and ors.

Excerpt:


.....never took place. it is also pleaded that plaintiff is a money lender and a loan was obtained by the defendant from him and in lieu of that loan the document of agreement of sale was executed. hence, it has been prayed that the suit be dismissed.4. the learned trial court framed necessary issues and after recording the evidence of the parties, decreed the suit. in this manner this appeal has been filed by the defendant.5. the only point which has been raised by the learned counsel for the appellant that although in the plaint, it has 3 f.a.no.220/96 been pleaded that the advance money was obtained on the date of execution of document of agreement of sale but in the evidence it has been adduced by the plaintiff that the advance money was paid by him to the defendant four days earlier to the date of execution of the agreement of sale, which is 02.02.1993 and therefore, the entire document is surrounded by dark clouds and becomes highly suspicious.6. considered the said submissions.7. indeed the learned trial court framed specific issues 1 to 3. in order to prove these issues, the plaintiff examined himself as p.w.-1 and also examined the scribe of the document narayan singh.....

Judgment:


1 F.A.No.220/96 HIGH COURT OF MADHYA PRADESH JABALPUR SINGLE BENCH: Hon’ble Shri Justice A.K. Shrivastava First Appeal No.220/1996 APPELLANT: Smt Ringan Bai, W/o Vipatlal Tali, Cultivator and R/o village Kamkasur, P.S. Lakhanwada, Tahsil and District Seoni. Versus RESPONDENTS:

1. Ramkumar S/o Nemichand Teli, Cultivator and R/o village Kamkasur, P.S. Lakhanwada, Tahsil and District Seoni.

2. State of M.P. Through Collector, Seoni, M.P. Shri Shailendra Verma, for the appellant. None for respondent No.2. Shri Santosh Yadav, Panel Lawyer for respondent No.2/ State. JUDGMENT

(12.03.2013) 1. Feeling aggrieved by the judgment and decree dated 29.02.1996, passed by learned Second Additional District Judge, Seoni in C.S. No.02-A/94 whereby the suit for specific performance of contract of plaintiff has been decreed, this appeal under Section 96 CPC has been filed 2 F.A.No.220/96 by the defendant.

2. The simple case of plaintiff is that defendant entered into an agreement of sale with him on 02.02.1993 in regard to the disputed property (description whereof has been mentioned in the plaint). The consideration Rs.50,000/- was fixed between the parties and a sum of Rs.37,000/- was paid to the defendant in advance. The balance amount was to be paid at the time of registration of the sale deed. Since the defendant, despite the plaintiff requested her to execute a sale deed, declined to execute the same, the plaintiff has filed the suit for specific performance of contract.

3. The defendant by filing written statement has denied the plaint averments and pleaded that the agreement to sell the property in question never took place. It is also pleaded that plaintiff is a money lender and a loan was obtained by the defendant from him and in lieu of that loan the document of agreement of sale was executed. Hence, it has been prayed that the suit be dismissed.

4. The learned Trial Court framed necessary issues and after recording the evidence of the parties, decreed the suit. In this manner this appeal has been filed by the defendant.

5. The only point which has been raised by the learned counsel for the appellant that although in the plaint, it has 3 F.A.No.220/96 been pleaded that the advance money was obtained on the date of execution of document of agreement of sale but in the evidence it has been adduced by the plaintiff that the advance money was paid by him to the defendant four days earlier to the date of execution of the agreement of sale, which is 02.02.1993 and therefore, the entire document is surrounded by dark clouds and becomes highly suspicious.

6. Considered the said submissions.

7. Indeed the learned Trial Court framed specific issues 1 to 3. In order to prove these issues, the plaintiff examined himself as P.W.-1 and also examined the scribe of the document Narayan Singh (P.W.-2) and also examined Chamru (P.W.-3) and Chatarvati (P.W.-4). The witnesses P.W.-3 and P.W.-4 have been examined by plaintiff to prove the fact that to purchase the disputed property, he took loan of Rs.10,000/- each from these two witnesses. In the evidence of Chamru it has come that plaintiff is his brother-in-law while Chatarvati is his sister.

8. On bare perusal of the evidence of plaintiff this court finds that he has categorically proved the execution of the document of agreement of sale (Ex. P-1). Further he has stated that he has paid a sum of Rs.37,000/- towards advance money to the defendant and thereafter on 02.02.1993, the document of agreement of sale (Ex.P-1) 4 F.A.No.220/96 was executed. In cross-examination, he has specifically deposed that the document of agreement of sale was read over and explained to the defendant and thereafter she put her thumb impression upon it. He has also deposed that the document of agreement of sale (Ex. P-1) bears thumb impression of defendant which she put in his presence and at that juncture her husband was also present. The plaintiff has further deposed that when defendant avoided to execute the sale deed, he sent a registered notice to the defendant through his counsel asking her to execute the sale deed on 02.02.1994. Thereafter on 02.02.1994, he went to the Sub-Registrar office and was waiting for the arrival of defendant but she did not turn up to execute the sale deed. In very specific words the plaintiff has deposed that even today he is ready to purchase the suit property after paying the balance consideration of Rs.13,000/- to the defendant. In para 15 of his cross-examination this witness has stated that four days earlier to the date of execution of agreement of sale (Ex. P-1), which was executed on 02.02.1993, he paid a sum of Rs.37,000/- towards advance money to the defendant and at that time Chamru, Sumaru and Chatarvati were present.

9. The statement of plaintiff has also been corroborated by Chamru and Chatarvati. I do not find any force in the 5 F.A.No.220/96 contention of learned counsel for the appellant that in the plaint this fact has not been pleaded by the plaintiff that earlier to the date of execution of agreement of sale, advance money was paid. Indeed para 4 of the plaint was amended on 14.11.1995 and it has been specifically added that a sum of Rs.37,000/- was paid in advance earlier to the execution of agreement of sale. Thus I am of the view that learned Trial Court rightly arrived at a conclusion that the advance money Rs.37,000/- was paid by the plaintiff to the defendant four days earlier to the execution of document of agreement of sale and has also rightly arrived at a conclusion that defendant entered into an agreement with plaintiff to get the sale deed executed in favour of the plaintiff in regard to the suit property.

10. The learned Trial Court has further came to hold that when defendant declined to execute the sale deed, the plaintiff through his counsel sent a registered notice by post to her. There is specific evidence of plaintiff that he is ready to purchase the property after paying the balance amount of Rs.13,000/- to the defendant. Thus the readiness and willingness of plaintiff is also proved.

11. The defendant although denied the execution of document of agreement of sale but she has specifically admitted in her cross-examination that the notice sent by plaintiff was received by her and she did not reply the said 6 F.A.No.220/96 notice. In cross-examination para 5 she has also admitted that she might have put thumb impression on the document of agreement of sale. She has also proved the presence of her husband when she put thumb impression upon the document of agreement of sale but she has failed to examine him. In these state of affairs, I am of the view that learned Trial Court did not err in holding that defendant agreed to sell the suit property to the plaintiff.

12. So far as the plea of defendant that the transaction was of loan is concerned, although this plea has been raised in the written statement but it has not been substantiated by her by examining the witnesses. Therefore, learned Trial Court rightly arrived at a conclusion that this plea has not been proved.

13. I have gone through the reasonings assigned by learned trial Court and I find that they are based upon correct appreciation of evidence and therefore no interference is called for in this appeal.

14. Resultantly, this appeal being devoid of merits is accordingly dismissed. Since no body is appearing for the plaintiff/respondent No.1, parties to bear their own costs. (A.K.Shrivastava) Judge 12/03/2013 gn


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