Madhya Pradesh High Court
Smt. Manju Bala Alias Manjula Chordia vs Pritesh on 3 April, 2025
NEUTRAL CITATION NO.2025:MPHC-IND:8855 1 FA Nos.428/2022, 477/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
FIRST APPEALS No. 428 of 2022 and 477 of 2022
COMMON JUDGMENT
ASHISH AND ANOTHER
…Appellants
and
PRITESH AND OTHERS
…Respondents
FIRST APPEAL No.477 of 2022
SMT. MANJU BALA ALIAS MANJULA
CHORDIA
…Appellant
and
PRITESH AND ORTHERS
…Respondents
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Appearance: In F.A. No.428/2022
Shri A.K. Sethi, learned Senior Advocate assisted by Shri Harish Joshi,
learned counsel for the appellants.
Shri Vishal Baheti, learned Senior Advocate assisted by Shri R.K. Shastri,
learned counsel for respondent No.1.
Shri Jitendra Bharat Mehta, learned counsel for respondents No.2 and 4.
Shri Aproov Joshi, learned Government Advocate for respondent No.3 /
State.
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 03-04-2025
18:29:17
NEUTRAL CITATION NO.2025:MPHC-IND:8855 2 FA Nos.428/2022, 477/2022
————————————————————————————————-
Appearance : – In F.A. No.477/2022
Shri Jitendra Bharat Mehta, learned counsel for the appellant.
Shri Vishal Baheti, learned Senior Advocate assisted by Shri Ramkrishna
Shastri, learned counsel for respondent No.1.
Shri Aproov Joshi, learned Government Advocate for respondent No.3 /
State.
Shri A.K. Sethi, learned Senior Advocate assisted by Shri Harish Joshi,
learned counsel for respondents No.4 and 5.
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Reserved on 27.03.2025
Pronounced on 03.04.2025
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Originally the plaintiff (Pritesh Chordia) filed Civil Suit No.267-
A/2010 against Manju Bala and 5 Ors., the said suit was decreed on
08.02.2022 for specific performance and declaration.
Challenging the judgment and decree dated 08.02.2022, the present
appeals filed by the appellant / defendant (Smt. Manju Bala) in First
Appeal No.477/2022 and subsequent purchasers / defendants No.5 and 6
(Ashish and Anil Kumar) filed another First Appeal No.428/2022.
COMMON JUDGMENT
First Appeals No.428/2022 and 477/2022
01. Invoking jurisdiction of this Court under Section 96 of CPC, the
appellants / defendants No.5 (Ashish) and 6 (Anil Kumar) have filed First
Appeal No.428/2022 and the appellant (Manju Bala) / defendant No.1 filed
another First Appeal No.477/2022 calling in question the validity, legality,
propriety and correctness of the judgment and decree dated 08.02.2022
passed by V District Judge, Ratlam (M.P.) in Civil Suit No.267-A/2010
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 03-04-2025
18:29:17
NEUTRAL CITATION NO.2025:MPHC-IND:8855 3 FA Nos.428/2022, 477/2022
decreeing the suit filed for specific performance and declaration declaring
that the sale deeds dated 20.09.2010, 18.12.2013 and 13.12.2016 are void
in respect of disputed agricultural land situated in Village Viriyakhedi,
Ratlam in survey No.162/4 area 0.640 hectares.
02. Since these appeals are arising out of the judgment in Civil Suit
No.267-A/2010 dated 08.02.2022, they have been heard together and are
being decided by this common judgment with the consent of all the
counsels.
03. For sake of convenience, the parties are hereinafter referred to as
they are arrayed before the learned trial Court in Civil Suit No.267-A/2010.
04. The necessary facts and legal contentions urged on behalf of the
parties are stated herein with a view to find out as to whether the impugned
judgment and decree in decreeing the suit for specific performance and for
declaration declaraing the registered sale deeds dated 20.09.2010,
18.12.2013 and 13.12.2016 are void in respect of disputed agricultural land
requires to be examined by following these appeals.
05. In this judgment for the sake of brevity, I would like to refer to the
ranking of the parties as assigned in the plaint presented before the Court.
Since there is congruence in mentioning exhibits in judgment of the learned
trial Court, I will refer to the documents as per annexures presented along
with these appeals.
06. The facts leading to the present appeals in a nutshell are as under :
The plaintiff (Pritesh) has filed a suit against the defendants No.1 to 6
seeking for specific performance and declaration declaring that the
registered sale deeds dated 20.09.2010, 18.12.2013 and 13.12.2016 are
illegal and void and for permanent injunction for the disputed agricultural
land bearing survey No.162/4 situated in Village Viriyakhedi, Ratlam
admeasuring 0.640 hectares. Further averred that defendant No.1 (ManjuSignature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 03-04-2025
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 4 FA Nos.428/2022, 477/2022Bala) is the owner of the disputed agricultural land / schedule property,
which is free from encumbrances proposed to sell the entire disputed land
to the plaintiff for Rs.14,50,000/-. Considering the negotiations, the
defendant No.1 (Manju Bala) had executed an agreement of sale dated
17.04.2009 in favour of the plaintiff by receiving an advance sale
consideration of Rs.3,00,000/- by way of Cheque No.1350219 of Mandsaur
Regional Rural Bank, the said cheque was encashed by defendant No.1.
Further averred that plaintiff would pay remaining amount of sale
consideration to the defendant No.1 on or before 17.07.2010 (15 months)
and condition was imposed that if the plaintiff fails to pay the balance sale
consideration within 15 months, the agreement of sale executed by
defendant No.1 will be cancelled and the advance amount paid by the
plaintiff will be forfeited. Accordingly, plaintiff secured the balance sale
consideration of Rs.11,50,000/- called upon the defendant to execute a sale
deed in favour of plaintiff as he was ready with a balance sale
consideration, approached the Sub-Registrar Office on 17.07.2010 and
purchased the stamp and obtained receipt from the Office of Sub-Registrar.
Despite that, the defendant for the reasons best known to her, she could not
attend the Sub-Registrar Office for execution of the sale deed by receiving
balance sale consideration, hence, for breach of agreement, the plaintiff
made inquries on 15.11.2010 and he came to know that the defendant No.1
has sold the subject land to defendant No.2 and executed a sale deed of the
disputed land on 20.09.2010 for sale consideration of Rs.15,00,000/-. The
sale deed executed by defendant No.1 in favour of defendant No.2 is null
and void and defendant No.2 is not entitled to get any title. The agreement
of sale executed by defendant No.1 in favour of plaintiff has over riding
effect of defendant No.2, amendents were sought to amend the plaint,
further avered that defendant No.2 (Smt. Naina) sold the disputed property
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 03-04-2025
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 5 FA Nos.428/2022, 477/2022
to defendants No.4 and 5 (Hiralal and Ashish) on 18.12.2013 in spite of
agreement of sale dated 17.04.2009 is existing, thereafter, defendants No.4
and 5 (Hiralal and Ashish) sold the disputed property to defendant No.6
(Anil Purohit) under sale deed dated 13.12.2016, all the sale deeds are hit
by Section 52 of the Transfer of Property Act, 1882, all the sale deeds dated
20.09.2010, 18.12.2013 and 13.12.2016 are declared to be null and void and
revokable under Section 52 of the Transfer of Property Act, 1882, the
present suit filed by the plaintiff basing on the cause of action on
17.07.2010, defendant No.1 did not appear for registration in the office of
Sub-Registrar despite of the plaintiff is present to perform the contract
when she could not appear he has no option except file the suit for specific
performance and declaration declaring the sale deeds dated 20.09.2010,
18.02.2013 and 13.12.2016 declared to be null and void and seeks for
permanent injunction.
07. As seen from the written statement of defendant No.1, there is a clear
and categorical denial of her signature as well as the execution of
agreement of sale dated 17.04.2009, further averred that defendant No.1
was the owner of the land admeasuing 0.640 hectares in survey No.162/4
Village Viriyakhedi, Tehsil and District Ratlam. On 20.09.2010 the said
disputed land was sold to defendant No.2 (Naina) by defendant No.1 and
possession was also given to defendant No.2, further averred that defendant
No.1 was no longer the owner of the said land, defendant No.1 never
executed any sale agreement in favour of the plaintiff and the said sale
agreement is forged by plaintiff, his father Ramesh and one Farooq, further
averred that the said agreement dated 17.04.2009 does not bear the
signature of defendant No.1. The said sale agreement dated 17.04.2009
brought into existence by plaintiff with the connivance of his father and
Farooq causing loss to defendant No.1, further averred that the Stamp
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 6 FA Nos.428/2022, 477/2022
bearing No.240566 dated 17.04.2009, the District Treasury Officer has
informed that the said stamp has been issued by District Treasury to Smt.
Chandrakala Verma, Stamp Vendor dated 04.06.2010 for challan dated
02.06.2010, therefore, the question of said stamp has been sold on
17.04.2009 does not arise, the alleged signature made on the disputed
agreement to sale has been examined by Expert H.S. Tuteja, Indore has
given a report that on comparing the alleged signture on the disputed
agreement and the sale deed dated 20.09.2009 executed by defendant No.1
in favour of defendant No.2, the signture of defendant No.1 is not on the
disputed agreement, further averred that the said agreement is forged and
fabricated, it is inadmissible in evidence, the said agreement has not been
executed in the proper stamp, further averred that plaintiff has purchased
the stamp on 04.06.2010, the plaintiff has deliberately written the sale price
of Rs.14,50,000/-, further averred that plaintiff had paid Rs.3,00,000/- by
way of cheque bearing No.1350219 dated 18.04.2009 in connection with
the other transactions, further averred that there was a doubt in the mind of
defendant that the plaintiff should pay Rs.3,00,000/- with malice intent to
usurp the property of defendant No.1 and prepared sale agreement on the
forged stamp showing that the amount was paid by him for advance sale
consideration, further averred that the plaintiff was never ready to pay
balance sale consideration and he did never give any information requesting
her to come to Sub-Registrar Office to fulfil his contract, therefore, the
plaintiff is not entitled to any relief much less of any specific performance,
declaration and permanent injunction and prayed for dismissal of the suit
with an amount of Rs.10,000/-.
08. Written statement filed by defendant No.2 (Naina) containing inter
alia that the defendant No.1 has sold the land in survey No.162/4
ademasuing 0.640 hectares through a registered sale deed dated 20.09.2010
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 03-04-2025
18:29:17
NEUTRAL CITATION NO.2025:MPHC-IND:8855 7 FA Nos.428/2022, 477/2022
by receiving sale consideration and handed over the possession of the said
land from the date of sale and she is the bona fide purchaser of the disputed
land, defendant No.1 has no ownership rights or possession in the suit land,
further averred that her name has been mutated in the revenue records,
further averred that the plaintiff filed a suit on the false allegation that on
the basis of alleged agreement of sale dated 17.04.2009, the sale contract is
not stamped under the provisions of Indian Stamp Act, 1899, the plaintiff
has no cause of action to file this suit and prays for dismissal of the suit.
09. Written statement filed by defendants No.4 to 6 containing inter alia
denied all averments made in the plaint, the alleged sale agreement dated
17.04.2009 neither stamped with the sufficient stamp under the Indian
Stamp Act, 1899 nor registered under Section 17 of the Indian Registration
Act, the alleged agreement of sale is not valid and the said agreement of
sale is not enforceable under the provisions of Section 23 of the Indian
Contract Act, 1872, further averred that the suit is barred by law, further
averred that the plaintiff and defendant No.1 prepared arbitrary documents
and creating unnecessary disputes, further averred that defendant No.4 to 6
are the bona fide purchasers of the disputed land, plaintiff is not entitled to
get any relief against them and suit of the plaintiff is liable to be dismissed.
10. On the basis on the pleadings and documents on record, the learned
trial Court framed the followings issues :-
“(i). Whether, defendant No.1 has acquired the disputed
land in survey No.162/4 area 0.640 hectares in Village
Viriyakhedi, Tehsil and District Ratlam and sale
agreement executed in favour of plaintiff dated
17.04.2009 for Rs.14,50,000 was true ?
(ii). Whether, defendant No.1 received the advance
amount of Rs.3,00,000/- through a cheque in the
aforesaid agreement ?
(iii). Whether, the sale agreement made by the defendant
No.1 was not complied by the plaintiff for ready and
willing to perform the contract ?
(iv). Whether, the plaintiff is entitled to enforce the said
sale agreement from defendant No.1?
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 03-04-2025
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 8 FA Nos.428/2022, 477/2022
In option / alternative
If the defendant No.1 does not comply with the sale
agreement in that case is the plaintiff entitled to get the
sale deed through Court?
(v). Whether, the sale deed dated 20.09.2010 executed
by defendant No.1 to defendant 2 is illegal and void in
effect as against the sale agreement dated 17.04.2009
made by the plaintiff ?
(vi). Whether, defendant No. 2 has no title or right in the
disputed land by virtue of sale deed dated 20.09.2010 to
defendant No.2 ?
(vii). Relief and costs.
(viii). Whether, the registration of the disputed land done
by the defendants in their favour while the suit was
pending is void under Section 52 of the Transfer of
Property Act, 1882 ? ”
11. During the course of trial, PW-1 and PW-2 were examined and
Exs.P-1 to 12 were got marked on behalf of the plaintiff. DW-1 to DW-3
were examined and Exs.D-1 to 8 were got marked on behalf of defendants.
12. According to the learned trial Court, issues No.1 and 2, proved,
issues No.3 to 5 and 8, yes / proved. Issue No.6, as defendant No.2 has not
acquired title over the suit land, issue No.7, as per Para 62 of the judgment,
resultantly, suit is decreed for specific performance and declaration
declaring that the sale deeds executed by defendant No.1 in favour of
defendant No.2 dated 20.09.2009 subsequent sale deeds dated 18.12.2013
and 13.12.2016 (Exs.P-3 to P-5) are void and ineffective regarding the
disputed agricultural land in Village Viriyakhedi, Tehsil and District Ratlam
in Survey No.162/4 admeasuring 0.640 hectares. Consequently, the suit
filed by the plaintiff in respect of disputed agricultural land in survey
No.162/4 area 0.640 hectare situated in Village Viriyakhedi, Tehsil and
District Ratlam is accepted, further direction that the registered sale deed
dated 20.09.2010 executed by defendant No.1 in favour of defendant No.2
on Ex.P-3 and the registered sale deed dated 18.12.2013 executed by
defenant No.2 in favour of defendants No.4 and 5 during the pendency of
the suit the Ex.P-4 and registered sale deed dated 13.12.2016 executed by
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 9 FA Nos.428/2022, 477/2022
defendant No.5 in favour of defendant No.6 (Ex.P-5) of the disputed land or
declared void and ineffective, further directed the plaintiff to pay the
balance sale consideration of Rs.11,50,000/- within two months from the
date of decree and directed the defendant No.1 to execute a sale deed of the
disputed agricultural land situated in Village Viriyakhedi, Ratlam in survey
No.162/4 area 0.640 hectares, which is mentioned in the agreement of sale
(Ex.P-6) in favour of the plaintiff and deliver possession of the disputed
land, in case defendant No.1 failed to execute a sale deed within two
months after receiving the balance sale consideration in compliance to the
decree, the plaintiff can initiate proceedings for enforcement of decree
through Court, get the sale deed of the disputed land as per law.
13. Feeling aggrieved by and dis-satisfied with the judgment and decree
dated 08.02.2022 of learned trial Court in Civil Suit No.267-A/2010, first
appeal No.428/2022 has been filed by defendants No.5 and 6 (Ashish and
Anil) in the suit / appellants herein and another first appeal No.477/2022
has been filed by defendant No.1 (Manju Bala) in the suit / appellant herein
respectively.
14. Shri A.K. Sethi, learned Senior Advocate assisted by Shri Harish
Joshi, learned counsel for the appellants in F.A. No.428/2022 submitted that
the appellants are the subsequent purchasers of the dipsuted land from
defendant No.2, they are the bona fide purchasers of the disputed land by
paying valid sale consideration and the names were mutated in the revenue
records, further submitted that judgment and decree of the learned trial
Court is not in accordance with law and prays to allow the appeal and set
aside the judgment and decree of the learned trial court.
15. Shri J.B Mehta, learned counsel for the appellant herein and
defendant No.1 (Manju Bala) in the suit in F.A. No.477/2022 submitted that
he is also appeared on behalf of respondents No.2 and 4 in First Appeal
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 10 FA Nos.428/2022, 477/2022
No.428/2022 / defendants No.1 and 2 in the suit submitted that the plaintiff
has not proved his readiness and willingness to perform the part of contract
for seeking relief of specific performance, further submitted that the learned
trial Court erred in decreeing the suit of the plaintiff granted specific
performance and directed him to deposit balance sale consideration, the
learned trial Court has not properly appreciated the evidence and decreed
the suit, further submitted that the Ex.P-6 disputed agreement of sale dated
17.04.2009 and suit is filed in November, 2010 and defendant No.1 sold the
disputed property to defendant No.2 on 20.09.2010 much prior to filing of
the suit, the stamp of agreement of sale document No.240566 issued on
04.06.2010 and the agreement is ante-dated, therefore, the very agreement
of sale is fabricated and forged, further submitted that the plaintiff never
expressed readiness and willingness to perform the part of contract and he
contended that it is a fit and proper case, where specific performance ought
not to be ordered, it is urged that the specific performance of an agreement
need not necessarily be ordered merely because it is not lawful to do so and
the matter lies in the judicious exercise of discretion of the Court, such
discretion should not be used arbitrary, therefore, he prays to allow the
appeal and set aside the judgment and decree of the learned trial Court.
16. Shri Vishal Baheti, learned Senior Advocate assisted by Shri
Ramkishan Shastri advanced common arguments in both the appeals as the
plaintiff (Pritesh) in the suit / respondent No.1 in both the appeals,
submitted that respondent / plaintiff entered into a sale agreement with the
defendant No.1 (Manju Bala) on 17.04.2009 and paid advance sale
consideration of Rs.3,00,000/- by way of cheque to purchase of disputed
land for an extent of land 0.640 hectares in survey No.162/4 situated in
village Viriyakhedi for total sale consideration of Rs.14,50,000/-, further
submitted that on the date of the agreement of sale dated 17.04.2009, the
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 11 FA Nos.428/2022, 477/2022
plaintiff paid Rs.3,00,000/- as advance sale consideration through a cheque
No.1350219 and the said cheque was honourned and encashed by defendant
No.1, further submitted that in the agreement there was a condition the
plaintiff has to pay the balance sale consideration on or before 17.07.2010
and obtained the registereed sale deed, accordingly, the plaintiff sent oral
communication directed her to attend the Sub-Registrar Office on
17.07.2010 to execute a sale deed by receiving balance sale consideration
of Rs.11,50,000/- on 17.07.2010, plaintiff purchased the stamp and obtained
receipt from the Sub-Registrar expressing readiness and willingness to
perform his part of contract to pay the balance sale consideration and to
obtain sale deed from defendant No.1, further submitted that unfortunately
the defendant No.1 did not attend to the Sub-Registrar Office to receive the
balance sale consideration and to execute the sale deed. Further submitted
that in Paras 13 and 17 in the judgment of learned trial Court has
categorically gave finding that the agreement of sale is valid and duly
stamped and the plaintiff has proved his readiness and willingness to
perform the part of contract under Section 16(c) of Specific Act, further
submitted that defendant No.1 took a plea in the written statement that the
signature on the agreement is not that of herself and forged, she has not
taken any steps to send the disputed documents to the hand writing expert
with admitted signatures, hence, the plea of forgery is unsustainable, further
submitted that the evidence on record establishes that the defendant No.1
executed (Ex.P-6) agreement of sale with the plainitff and agreeing to the
terms and conditions. Further submitted that the trial Court on proper
appreciation of evidence on record has came to a correct conclusion
regarding the execution of sale agreement by the defendant No.1, the
ordinary rule is that the specific performance should be granted,
accordingly, the learned trial Court decreed the suit that the judgment and
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 12 FA Nos.428/2022, 477/2022
decree of the learned trial Court found no illegality or arbitrariness and
needs no interference by this Court and he prays to dismiss both the
appeals.
17. After hearing elaborate arguments advanced on behalf of parties and
on perusal of the record, I am of the view that the following points arise for
consideration in these appeals :
“(i). Is the learned trial Court justified in granting the relief of specific
performance of sale agreement dated 17.04.2009 and for declaration
declaring the sale deeds dated 20.09.2009, 18.12.2013 and
13.12.2016 (Exs.P-3 to 5) are void ?
(ii). Is the judgment and decree passed by the learned trial Court
needs any interference ?”
18. Coming to the appreciation of the evidence, it is no doubt from the
experience and knowledge of human affairs depending upon facts and
circumstances of each case and regard must be had to the credibility of the
witness, probative value of the documents, relationship of the parties
actions and inactions, lapse of time if any in proof of the events and
occurrences, from consistency to the material on record to drawn wherever
required the necessary inferences and conclusions from the broad
probabilities and preponderances, from the overall view of entire case to
judge as to any fact is proved or not proved or disproved and the
conclusions arrived by the trial Court are sustainable or not. Since all the
above points are interrelated to each other they are dealt together.
19. Undisputed facts as per the pleadings and evidence are that the
defendant No.1 (Manju Bala) has not come forward to execute a sale deed
on 17.07.2010 in spite of plaintiff being present before the Sub-Registrar
Office and purchased the stamp paper and obtained receipt to get sale deed
from the defendant No.1 by paying balance sale consideration, further
undisputed fact that defendant No.1 sold the property to defendant No.2
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 13 FA Nos.428/2022, 477/2022
under sale deed dated 20.09.2010 (Ex.P-3), further undisputed fact that
defendant No.2 sold the disputed property to defendants No.4 and 5 under
registered sale deed dated 18.12.2013 (Ex.P-4), further undisputed fact that
defendants No.4 and 5 during the pendency of the suit, sold the property to
defendant No.6 on 13.12.2016 (Ex.P-5). Admittedly, all the sale
transactions done by defendants No.1, 2 and 4 to 6 have been made
subsequent to the date 17.07.2010. Further undisputed fact that though the
defendant No.1 has taken plea in the written statement that the signature of
written statement is not that of herself and is forged, admittedly, burden lies
on the defendant No.1 to discharge the same, she could not take any steps
and the reasons assigned by learned trial Judge are on sound lines.
20. In view of the undisputed facts referred (supra), this Court should
consider whether the plaintiff / respondent No.1 has proved and entitled for
specific performance and for declaration sought for.
21. Before accepting the evidence and documents filed by respective
parties, the appeals are one under Section 96 of the CPC, the scope of
Section 96 of CPC is to be considered. While dealing with the scope of first
appeals, three Judge Bench of Hon’ble Apex Court in case of Santosh
Hazari Vs. Purushottam Tiwari (Dead) By LRs1 held as follows:
“15………the appellate court has jurisdiction to reverse or affirm the
findings of the trial court. First appeal is a valuable right of the parties
and unless restricted by law, the whole case is therein open for
rehearing both on questions of fact and law. The judgment of the
appellate court must, therefore, reflect its conscious application of
mind and record findings supported by reasons, on all the issues
arising along with the contentions put forth, and pressed by the
parties for decision of the appellate court. The task of an appellate
court affirming the findings of the trial court is an easier one. The
appellate court agreeing with the view of the trial court need not
restate the effect of the evidence or reiterate the reasons given by the
trial court; expression of general agreement with reasons given by the
court, decision of which is under appeal, would ordinarily suffice
(See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC
1124] ). We would, however, like to sound a note of caution.
1. (2001) 3 SCC 179
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 14 FA Nos.428/2022, 477/2022Expression of general agreement with the findings recorded in the
judgment under appeal should not be a device or camouflage adopted
by the appellate court for shirking the duty cast on it……..”
22. In case of H.K.N. Swami v. Irshad Basith2, Hon’ble Apex Court
ruled that:
“3.The first appeal has to be decided on facts as well as on law. In the
first appeal parties have the right to be heard both on questions of law
as also on facts and the first appellate court is required to address
itself to all issues and decide the case by giving reasons.
Unfortunately, the High Court, in the present case has not recorded
any finding either on facts or on law. Sitting as the first appellate
court it was the duty of the High Court to deal with all the issues and
the evidence led by the parties before recording the finding regarding
title. The order of the High Court is cryptic and the same is without
assigning any reason.”
23. On the basis of these two judgments, the first appeals have to be
decided on the basis of issues and evidence led by the parties before
recording the findings of fact taken by the learned trial Court should be
examined.
24. Now the plaintiff in the suit / respondent No.1 in both the appeals
seeking for specific performance under agreement of sale dated 17.04.2009
and declaration, the learned trial Court dealt the issues in detail and gave
findings that Manju Bala had executed agreement of sale dated 17.04.2009
for the sale of disputed land, further observed that the advance sale
consideration of Rs.3,00,000/- was paid by the plaintiff through a cheque
dated 17.04.2009 to Manju Bala to purchase disputed property in survey
No.162/4 admeasuring 0.640 hectares situated in village Viriyakhedi,
Ratlam, further observed that in compliance with the agreement the plaintiff
has been ready and willing to perform his part of contract to fulfil, further
observed that defendant No.1 / appellant (Manju Bala) refused / not
2. (2005) 10 SCC 243
Signature Not Verified
Signed by: ANUSHREE
PANDEY
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 15 FA Nos.428/2022, 477/2022
attending to Sub-Registrar Office to comply with the conditions in
agreements to receive the balance sale consideration and to execute a sale
deed, further observed that all three sale deeds dated 20.09.2009,
18.12.2013 and 13.12.2016 (Exs.P-3 to 5) are declared to be null and void
and granted relief of specific performance, as per the Para 62 of the
judgment.
25. The appellant has taken a plea that no notice was issued by the
plaintiff and he has not fulfilled readiness and willingness to perform his
part of contract and plaintiff examined as (PW-1), the burden of proving the
fact that the plaintiff is ready and willing to abide by the condition in
agreement of sale, he stated that he approached the Sub-Registrar Office by
sending oral communication to the defendant No.1 with a request to attend
the Sub-Registrar Office on 17.07.2010 to receive the balance sale
consideration and to execute a sale deed and accordingly, PW-1 approached
the Sub-Registrar Office and purchased the stamp on 17.07.2010 and
obtained receipt, which are marked as Exs. D-1 and D-2 through DW-1
(Manju Bala). A judgment of High Court of Andhra Pradesh in the case of
Baddam Pratap Reddy vs. Chennada Jalapathi Reddy3. Para 17 reads as
follows:
“17. This Court, however, hastens to add that, in law, oral demand by
the buyer of immovable property, as such, being sufficient
compliance with requirements of Form Nos.47 and 48 cannot be
totally ruled out. In such circumstances, the proof of oral demand
should be strong and unimpeachable and mere allegation, that too, in
a passing manner would not be sufficient compliance with the
requirement of law. This aspect of the matter, however, has to be gone
into a little deeper in an appropriate case, but it would be sufficient to
leave the issue with the observations as made hereinabove.”
26. Learned trial Court to answer the above issue of readiness and
willingness that PW-2 is attesting witness gave evidence corroborating the
3 2008 0 Supreme (AP) 362
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evidence of plaintiff (PW-1), undoubtedly, the evidence of this witness has
not been questioned by the defendant No.1 during the cross-examination,
hence, there is no reason to disbelieve the evidence of this witness, learned
trial Court holds that plaintiff proved his readiness and willingness to
perform his part of contract, therefore, the plea of defendant No.1 that the
plaintiff has not fulfilled his readiness and willingness to perform the
contract is negatived. On the other hand, PW-1 stated that he sent oral
communication to the defendant No.1 with request to attend the Sub-
Registrar Office to receive the balance sale consideration on 17.07.2010
and execute a sale deed and he purchased stamps and obtained receipt to
prove his bona fide readiness and willingness to perform his part of
contract, the defendant No.1 (Manju Bala) has not attend the Sub-Registrar
Office, therefore, the learned trial Court holds that plaintiff proved his
readiness and willingness and the judgment referred above is aptly
applicable to the present facts of this case.
27. Another plea taken by defendant No.1 (Manju Bala) in the written
statement as well as evidence that the signaure on the agreement of sale are
not that of herself and forged, which has come into the existence with the
connivance of plaintiff, his father and Farooq, when the defendant No.1 has
taken such plea there can be no straightjacket formula for the appreciation
of oral evidence of witnesses. The credibility of the witnesses is the
paramount consideration for the Court. After passing three legal tests viz.
relevancy, admissibility and competence of witnesses, while considering the
credibility of evidence of DW-1, the Court has to consider the various
parameters so as to appreciate the oral evidence on the point by testing the
same on the touch stone of two important yardsticks viz. probabilities and
surroundings circumstances among other parameters, the learned trial Court
also found fault with the defendant No.1 / DW-1 in failing to establish that
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agreement of sale (Ex.P-6) is a forgery. However, when the burden of proof
rests with the defendant No.1 / DW-1 to prove agreement of sale (Ex.P-6)
as forged, it cannot be shifted to the plaintiff, therefore, the reasons
assigned by the trial Court are on sound lines. If the averments made in the
written statement of defendant No.1 and her testimony as DW-1 were
discussed by the learned trial Court in right perspective that the defendant
has not taken any steps to examine the agreement of sale dated 17.04.2009
with admitted signatures of the DW-1 by handwriting expert except denial
of (Ex.P-6), she could not take steps for genuineness of the (Ex.P-6), one of
the attestor Farooq as examined as PW-2 had categorically stated that the
agreement of sale executed by defendant No.1 in his presence and paid of
advance sale consideration of Rs.3,00,000/- by the plaintiff through a
cheque and defendant No.1 signed on the agreement of sale, nothing was
elucidated during the cross-examination of PW-2 and further defendant
No.1 taken plea in the written statement that the disputed land examined by
private hand writing expert with admitted signatures and stated that the
signatures on the agreement of sale is not matched, the private expert
opinion dated 11.11.2021 is available on record that the defendant No.1 has
not taken any steps to mark the said opinion, perused the private expert
opinion dated 11.11.2021 opined that Q1 and Q2 questioned siganature of
Manju Bala executed a photocopy of agreement of sale dated 17.04.2009
and admitted signature of Manju Bala on the photocopy of sale deed dated
20.09.2010 marked as A2 to A9 has signed by same person, therefore, in the
light of the above opinion, the defendant No.1 has not shown any interest to
mark the said opinion, on the ground that the said opinion is negatived to
the defendant No.1 as such the plea of defendant No.1 that (Ex.P-6) not
executed by herself and forged is negatived.
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28. The another plea taken by defendant No.1 in her written statement
and in evidence stated that (Ex.P-6) stamp of Rs.100/- vide document
No.240566 issued on 04.06.2010, which was alleged to be executed (Ex.P-
6) on 17.04.2009, which is ante-dated, therefore, the stamp paper which
was brought into the existence by plaintiff, on perusal of (Ex.P-6) showing
the stamp purchased on 17.04.2009, therefore, the plea taken by the
defendant has no relevance and much weight cannot be given.
29. Learned counsel for the appellant in appeal No.477/2022 and
respondent in F.A. No.428/2022 placed reliance on many of the decisions of
the Hon’ble Supreme in the case of Loonkaran Sethia v. Ivan E. John
reported in AIR 1977 SC 359, Mohammadia Cooperative Building
Society Limited v. Lakshmi Srinivasa Cooperative Builidng Society
Limited and Ors. reported in (2008) 7 SCC 310, Sirumal v. Smt.
Annapurna Devi reported in 2000 (II) MPJR 474, Kamalrani v. Kumari
Pinki reported in 2001 (2) MPLJ 677, Ram Niwas v. Bano reported in
(2000) 6 SCC 685, Smt. Katta Sujtha Reddy v. Siddamsetty Infra
Projects Pvt. Ltd. and other AIR 2022 SC 5435 and Gaddipati Divija
and another vs. Pathuri Samrajyam & Ors reported in 2023 SAR (Civ)
763. The aforesaid citations are not much use of the appellant. The facts of
these cases are different.
30. In view of the foregoing discussions, the defendant No.1 (Manju
Bala) having knowledge execution of agreement of sale in favour of the
plaintiff (Pritesh) with an intention to avoid to execute a sale deed by
receiving balance sale consideration from the plaintiff she could not attend
the Sub-Registrar Office on 17.07.2010, she sold the disputed land to the
higher price to defendant No.2 for consideration of Rs.15,00,000/- with
ulterior motive. At this juncture, a decision reported in the case of K.
Prakash v. B.R. Sampath Kumar4, the Hon’ble Apex Court observed that:
4 (2015) 1 SCC 597
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 19 FA Nos.428/2022, 477/2022“18. Subsequent rise in price will not be treated as a hardship entailing
refusal of the decree for specific performance. The rise in price is a
normal change of circumstances; therefore, on that ground, a decree
for a specific performance cannot be reversed.
19. However, the Court may take notice of the fact that there has been
an increase in the price of the property and considering the other facts
and circumstances of the case, this Court, while granting a decree for
specific performance, can impose such conditions which may to some
extent compensate the defendant owner of the property. This aspect of
the matter is considered by a three-Judge Bench of this Court in
Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 8 SCC 146. …”
31. Another decision reported in the case of Nirmala Anand V. Advent
Corporation (P) Ltd. And others5, the Hon’bleApex Court held that:
“………As a general rule, it cannot be held that ordinarily, the
plaintiff cannot be allowed to have, for her alone, the entire benefit of
a phenomenal increase in the value of the property during the
pendencyof the litigation. While balancing the equities, one of the
considerations to be kept in view is who is the defaulting party. It is
also to be borne in mind whether a party is trying to take undue
advantage over the other as also the hardship that may be caused to
the defendant by directing specific performance.There may be other
circumstances in which parties may not have any control. The totality
of the circumstances is required to be seen.”
32. In the light of the above judgments, the defendant No.1 changed her
mind instead of executing a sale deed in favour of PW-1 by receiving
balance sale consideration, she executed a sale deed in favour of defendant
No.2 on 20.09.2010 and in turn defendant No.2 sold the disputed property
to defendants No.4 and 5 executed a sale deed on 18.12.2013 during
pendency of the suit and defendant No.5 executed a sale deed in favour of
defendant No.6 on 13.12.2016 (Exs.P-3 to P-5) for the disputed land, the
learned trial Court rightly upheld that the said sale deeds are declared to be
void.
33. After going through the entire evidence on record, this Court upholds
the trial Court’s findings that the defendant No.1 executed (Ex.P-6)
agreement of sale dated 17.04.2009 and agreeing to the terms and
5 2002(6) A.L.D. 54 (S.C.)
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conditions therein, the plaintiff is always ready and willing to perform his
part of contract as stated (supra). There is no justifiable reasons to arrive at
a different conclusions. The learned trial Judge used his discretion to grant
relief of specific performance of the agreement, the said discretion was
based on proper exercise of sound principles. The conduct of the defendant
resisting to execute a sale deed is quite normal with oblique motive to sell
the disputed land to the defendant No.2 with higher price and many
transactions were made in between defendants No.2 to 6 pending suit it is
hit by Section 52 of the Transfer of Property Act, 1882.
34. On a consideration of the above entire material, pleadings, evidence
adduced and the impugned judgment, I am convinced in the light of the
anlysis above that the learned trial Court has rightly exercised its discretion
in granting relief of specific performance and declaration and rightly
decreed the suit.
35. In case of Ram Lal Vs. Jarnail Singh (Now Deceased) through its
L.Rs. and Ors.6 Para 37 reads as follows:
“37. The law in the aforesaid context is well settled. The doctrine
of merger is founded on the rationale that there cannot be more than
one operative decree at a given point of time. The doctrine of merger
applies irrespective of whether the appellate court has affirmed,
modified or reversed the decree of the trial court.
……
43. . The doctrine of merger operates as a principle upon a judgment
being rendered by the appellate court. In the present case, once the
appellate court affirmed the judgment and decree of the trial court,
there was evidently a merger of the judgment of the trial court with
the decision of the appellate court. Once the appellate court renders
its judgment, it is the decree of the appellate court which becomes
executable. ”
36. In the light of the judgment if the plaintiff fails to pay the balance
sale consideration before filing of these appeals the doctrine of merger
applies once the appellate Court renders its judgment, it is the decree of the
6 2025 LiveLaw SC 283
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 21 FA Nos.428/2022, 477/2022
appellate Court, which becomes executable and comply the direction herein
under. Having reached the conclusion that the Judgment of the learned trial
Court is the result of proper appreciation of evidence, I find no illegality or
arbitrariness, the learned judge granted decree for specific performance and
declaration, directing the plaintiff to pay the balance sale consideration
within two months, learned trial Court ought to have granted interest on the
balance sale consideration @ 12 per annum from 17.07.2010.
37. The findings of learned trial Court are accurate and there is no need
for interference except for awarding interest on the balance sale
consideration amount as stated (supra), accordingly, the points answered.
38. Under such circumstances, having regard to the above discussions
and in view of the settled proposition of law discussed (supra), this Court
does not find any grounds to interefere with the well articulated judgment
and decree of the learned trial Court. Therefore, there is no merit in these
appeals and the same are liable to be dismissed.
39. (i). In the result, both the Appeals i.e. FA No.428/2022 and
477/2022 are dismissed. The judgment and decree dated 08.02.2022 passed
in Civil Suit No.267-A/2010 by the learned V District Judge, Ratlam, is
confirmed to the relief of specific performance and declaration, and
(ii) Directed the plaintiff / responent No.1 (Pritesh) to deposit the
balance sale consideration of Rs.11,50,000/- (Eleven Lakhs and Fifty
Thousand only) within two months from the date of this judgment, (if not
already deposited or paid), and the plaintiff is further directed to deposit
amount towards interest at the rate of 12% per annum on the balance sale
consideration of Rs.11,50,000/- from 17.07.2010 till the deposit of such
amount in the Court, and
(iii). On such deposit, defendant No.1 (Manju Bala) shall execute a
sale deed in favour of the plaintiff within one month, failing which, the
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NEUTRAL CITATION NO.2025:MPHC-IND:8855 22 FA Nos.428/2022, 477/2022
Court shall execute a sale deed in favour of plaintiff in respect of the plaint
schedule property (covered under agreement of sale) and delivered the
possesion, and
(iv). After execution of the sale deed, the defenant No.1 (Manju
Bala) / appellant is entitled to withdraw the amount deposited in the Court,
and
(v). In the facts and circumstances, the parties have to bear their
own costs in the appeals.
40. Misc. application pending, if any, in these appeals stand closed.
(DUPPALA VENKATA RAMANA)
JUDGE
Anushree
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PANDEY
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