Amar Singh And Another vs Manoj Kumar Gupta And Others

,,

The instant appeal under Section 96 of CPC has been preferred by the appellants/ defendants against the judgment and decree dated 18-10-2013,,

passed by Second Additional District Judge, Shivpuri in Civil Suit No.22-A/2011 whereby the suit for specific performance of contract in respect of",,

agreement dated 22-07-2010 has been decreed.,,

Facts of the case in brief for adjudication are that vide agreement dated 22-07-2010, plaintiffs/ respondents No.1 and 2 and defendants/ appellants",,

entered into registered agreement to sale with regard to property situate at village Gora Tahsil Kolaras, Districtâ€"Shivpuri vide Survey No.341/1",,

admeasuring 1.181 hecatre, Survey No.346/1 admeasuring 0.397 hectare and Survey No.344 admeasuring 0.543 hectare (hereinafter referred as",,

“disputed landâ€). Appellants/ defendants were the Bhumiswami and title holder of the disputed land. It was agreed through the agreement that for,,

consideration of Rs.3,00,000/-, entire property would be transferred by the appellants out of which Rs.2,50,000/-was paid by the plaintiffs/ respondents",,

No.1 and 2 at the time of registration of agreement itself. It was agreed upon that sale deed would be executed till 31/08/2011 and remaining amount,,

Rs.50,000/- would be paid.",,

It appears from the record and pleadings that plaintiffs requested the defendants to perform their part by executing sale deed but they kept on,,

avoiding and did not execute the sale deed. On dated 27-08-2011, plaintiffs sent a notice of demand Ex.P-2 requesting the defendants to execute the",,

sale deed in which readiness and willingness on the part of the plaintiffs have been expressed while paying Rs.50,000/- (remaining amount). On dated",,

30-08-2011, plaintiffs appeared before the Sub Registrar, Tahsil Kolaras, District-Shivpuri and through an application submitted before the authority",,

expressed their readiness and willingness in respect of execution of sale deed. The expression included the reference of fact regarding availability of,,

money kept as remainder for registration of sale deed.,,

When defendants did not turn up for registration of sale deed then on 04-11-2011, plaintiffs filed a suit seeking specific performance of the contract",,

vide agreement dated 22-07-2010 and pleaded inter alia that the registered agreement was executed between the parties in which it was agreed upon,,

that sale deed would be executed on or before 30-08-2011. As per the agreement, defendants were required to get the demarcation of the property",,

done so that the sale deed may be registered although even after request, no demarcation was done.",,

It was further pleaded by the plaintiffs that plaintiffs were ready and willing to perform their part of contract and in order to show their bonafide,",,

they sent notice dated 28-08-2011 (Ex.P-2) to the defendants making averments regarding readiness and willingness on the part of the plaintiffs.,,

Notices were duly served upon the defendants but to no avail because no reply was given by the defendants. They further referred the fact regarding,,

filing of application seeking execution of sale deed before Sub Registrar, Tehsil Kolaras, District-Shivpuri.",,

Defendants filed written statement and it was submitted that though agreement dated 22-07-2010 was executed between the parties, however the",,

same was not the agreement to sale but it was a mortgage deed and by playing fraud, plaintiffs got the agreement to sale executed which is required",,

to be cancelled. Defendants admitted the fact about receipt of notice dated 08-08-2011 (Ex.P-2) and told the plaintiffs about the notice. As a special,,

plea of defendants, it was submitted that the sale agreement was only for mortgage and not for agreement to sale, for which defendants made a",,

complaint. Since the cost of the property reflected in the agreement appear to be very low therefore, defendants opposed the prayer of the plaintiffs.",,

The trial Court framed as many as 8 issues on which evidence was led by the parties. On behalf of the plaintiffs, total 8 documents were exhibited",,

and 2 witnesses namely Manoj Kumar Gupta (PW-1) and Raghuveer Batham (PW-2) were examined whereas on behalf of defendants, 2 witnesses",,

namely Mahesh (DW-1) and Amar Singh (DW-2) were examined. After considering the evidence led by the parties oral as well documentary, trial",,

Court decreed the suit and directed plaintiffs to deposit remaining sale amount of Rs.50,000/- in the Court within two months from the date of passing",,

of the judgment on which defendants had to execute the sale deed within one month thereafter, and had to handover the possession to the plaintiffs by",,

the defendants, therefore, defendants have preferred the Civil Regular Appeal under Section 96 of CPC before this Court.",,

According to counsel appearing for the appellants, trial Court erred in law while not considering that the defendants executed the agreement to sale",,

and received amount of Rs.2,50,000/- as advance on dated 27-02-2010 was infact the amount borrowed from the plaintiffs for domestic use, it was not",,

received as advance for sale consideration. Plaintiffs converted Bandhak Nama into a forged agreement by hatching a conspiracy.,,

It was further submitted that the trial Court erred in law in ignoring the fact that defendants never executed any agreement to sale in favour of the,,

plaintiffs and therefore, the question of demarcating the land does not arrive.",,

It was also submitted that consideration of Rs.3,00,000/-towards lower side in comparision to market rate of the disputed land and therefore, it",,

could not have been a sale transaction, it was only a mortgage transaction represented as sale transaction.",,

He prayed for setting aside of the impugned judgment and decree passed by the trial Court.,,

Learned counsel relied upon the judgments rendered by the Hon'ble Apex Court in the case of Mushir Mohammed Khan Vs. Smt. Sajeda Bano,,

and Others, 2000 (1) JLJ 327 and Bibi Fatima and Others Vs. M. Ahamed Hussain and Others, (2017) 11 SCC 832 and submits that intention of the",,

parties to be gathered from recitals in document. It is further submitted that after receipt of notice they approached the plaintiffs but plaintiffs did not,,

receive any money and an FIR against the plaintiffs for fabricating the agreement dated 22-07-2010 (Ex.P-1) has been preferred by the appellants/,,

defendants. The said aspect has been ignored by the trial Court.,,

Learned counsel for the respondents vehemently opposed the prayer made by the appellants and submitted that the document (Ex.P-1) cannot be,,

considered to be a mortgage deed because if the document would have been a mortgage deed then it should have been contained reconveyance, but",,

any such condition was not written in the agreement.,,

Provisions of Section 58(c) of the Transfer of Property Act was not complied with. No evidence was led by the defendants to shake the,,

authenticity of the document (sale agreement Ex.P-1) that it was not a sale agreement but a mortgage deed. A opportunity was available to the,,

defendants when notice was duly served upon them but no such complaint was made. When the notice was duly served upon the defendants still they,,

did not file reply therefore, the same indicates that defendants impliedly admitted the content of the notice. Similarly, no FIR or copy of criminal case",,

was brought on record to show that any case is registered against the plaintiffs for fabricating the document. Defendants have set up their case on,,

false and frivolous grounds. Since the document in question was registered before the Sub Registrar, Gwalior therefore, as per the provisions of the",,

Registration Act, 1908, especially under Sections 34, 58 and 59, it is deemed that the contents of the documents have been read over to the executant",,

and only after execution of the same by the executant, the same was registered. Presumption is in favour of the plaintiffs/ respondents No.1 and 2,",,

which was un-rebutted or discharged successfully by the defendants. He relied upon the judgment of the Hon'ble Apex Court in the case S.V.R.,,

Mudaliyar and Others Vs. Mrs. Raja Bu F. Buhari, AIR 1995 SC 1607 and judgment of this Court in the case of Mool Chand Rajak Vs. S.P. Kapoor",,

and Others, 2010 (4) MPLJ 543. He prayed for dismissal of the appeal.",,

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no steps have been taken by him to repay the amount.,,

After considering the pleadings and evidence, trial Court rightly came to the conclusion that the contents of the agreement Ex.P-1 were read over",,

by the defendants and since agreement is a registered document and the signature over it are proved, therefore, it could not have been said that",,

defendants were not having any knowledge or inkling regarding the contents of the agreement. On behalf of the defendants, no potent or plausible",,

evidence was led to reach home the point that the agreement was a mortgage deed. When the trial Court on the basis of evidence discussed the issue,,

in detail and concluded that plaintiffs have duly proved that Ex.P-1 is an agreement to sale for which plaintiffs were always ready and willing to,,

perform their part of contract but defendants did not perform their part of duty to get the sale deed executed in compliance to the agreement,",,

therefore, in the fact situation, decree of specific performance ought to have been granted and rightly so the decree has been granted by the trial",,

Court.,,

Defence of the defendants was shaky and improbable. The main contentions of defendants that Ex.P-1 was a mortgage deed, was not at all",,

carried any semblance of mortgage deed and defendants could not prove any foul play while execution of the agreement. When defendants,,

categorically admitted about the endorsement of thumb impression, signatures and photographs (that too when the document was registered) then no",,

other inference could have been drawn.,,

The basic judgment in respect of controversy in question dates back to the case of Chunchun Jha Vs. Ibadat Ali, AIR 1954 SC 345 wherein the",,

Hon'ble Apex Court has held that in case, an agreement has to be considered as Mortgage by conditional sale as per Section 58 (c) of the Transfer of",,

Property Act, then in the agreement itself there has to be a condition regarding reconveyance of the property.",,

This Court in the case of Ammilal Vs. Kamala Bai, ILR 2010 (MP) 243, has held that whenever the execution of agreement is admitted then oral",,

evidence regarding the fact that the agreement is not an agreement to sale but a loan agreement cannot be considered in view of Section 91 of the,,

Indian Evidence Act. This Court in the case of Mool Chand Rajak (supra) has held that whenever a notice was given by one party to another party,,

and reply is not given by the other party then it is sufficient to draw inferene against such other party that he did not have any proper defence to,,

challenge or rebut. In the case in hand, no such condition was mentioned in the agreement regarding reconveyance and Amar Singh (DW-2)-",,

defendant No.2 admitted the execution of the agreement therefore, now he cannot take the stand that the agreement was for loan and not for sale.",,

Similarly, no reply of notice was given by the defendants in respect to the notice issued by the plaintiffs therefore, as per the mandate of this Court",,

in the case of Mool Chand Rajak (supra) the contents of the notice are deemed to have been admitted by the defendants.,,

The Hon'ble Apex Court in the case of Sukhveer Singh Vs. Brajpal, AIR 1996 SC 2510 has held that it is not a condition that respondents should",,

have ready cash for the same transcation. The fact that they attended Sub Registrar Office to get the sale deed executed is to be considered as,,

affirmative steps for execution of the sale deed and to infer that plaintiffs were having sufficient money to get the sale deed executed. Similarly, this",,

Court may profitably draw the input from the judgment of the Hon'ble Apex Court in the case of S.V.R. Mudaliyar (supra) to contend that specific,,

performance of the contract cannot be refused because of rise of price during course of litigation.,,

Since the trial Court has passed a well reasoned order after due appreciation of evidence therefore, no scope is left for treading on different path.",,

In case of Sarju Prasad Ramdev Vs. Jweleshary, AIR 1951 SC 120, the Hon'ble Apex Court has held that the appellate Court should be slow in",,

interfering into the findings recorded by the learned trial Judge who has recorded the findings after witnessing the demeanor of the witnesses. The,,

same spirit is being reiterated in the case of Madhusudan Das Vs. Smt. Narayani Bai, AIR 1983 SC 114 wherein the Apex Court has held that the",,

appellate Court does not enjoy the advantage which the trial Court has for having the witnesses before it and observing the manner in which they give,,

their testimony therefore, the findings of the trial Court should not be disturbed unless the same are based upon no evidence. In the case of Harvansh",,

Singh Vs. Bhagwan Das, 2006 (3) JLJ 234, it has been held by this Court that the appellate Court should permit the findings of the trial Court to",,

prevail, if the trial Court did not commit any mistake in evaluating the evidence.",,

In the considered opinion of this Court, after appreciating the pleadings, evidence and submissions of the parties, the trial Court did not err in",,

passing the impugned judgment and decree. All possible contours of the controversy are taken into account while passing the impugned judgment and,,

decree.,,

Resultantly, the appeal preferred by the appellants/ defendants is hereby dismissed and judgment and decree dated 18-10-2013 passed by Second",,

Additional District Judge, Shivpuri in Civil Suit No.22-A/2011 is hereby affirmed.",,

No costs.,,