JINESHWARDAS Vs. JAGRANI

JUDGEMENT

(1.) Special leave granted.

(2.) The appellant before this Court was the appellant in Second Appeal No. 693 of 1996 on the file of the Madhya Pradesh High Court at Jabalpur. The original plaintiff Jineshwardas, whose legal representatives are the appellants in this Court, filed the Civil Suit No. 102-A of 1980 before the Court of IV Civil Judge Class-I, Jabalpur, seeking for a decree for specific performance and recovery of the possession of the suit land or in the alternative, damages at market value as may be proved for non-performance of the contract and for recovery of Rs.2500/- paid by the plaintiff as deposit. The defendants disputed the suit claim by attributing fraud and undue influence as vitiating the agreement stating that it was opposed to public policy as well and really constituted no agreement of sale of immovable property. After trial and on consideration of the materials on record, the suit filed was dismissed. The matter was pursued on appeal before the VIth Additional District Judge, Jabalpur, and the learned First Appellate Judge also, after an elaborate consideration of the evidence on record, affirmed the findings of the learned Trial Judge by holding that the suit agreement cannot be considered as an agreement for sale of the land. The First Appellate Judge also notice the specific fact that the father of the plaintiff was a practicing Advocate and it is in respect of certain amounts spent for the litigation only, the agreement came to be executed and that it was merely an agreement to repay and not to convey the property itself. On that view of the matter, while partly allowing the appeal and affirming the judgment of the Trial Judge denying specific performance and recovery of possession, decreed the claim of the plaintiff to receive the sum of Rs.2,500/- with interest from 18-8-1963 till the date of filing of the suit, namely, 28-8-1975, at Re.1/- per month and thereafter interest at the rate of paise 50 per month. Aggrieved, the matter appears to have been pursued further before the High Court by means of a Second Appeal. From the copy of the order-sheet filed relating to the order made at the time of entertaining the appeal when it came up for admission, it is seen that the Second Appeal was admitted on 27-2-1998 on the following questions of law :-

(3.) Thereupon, when the Second Appeal came up before the Court for final hearing before another learned single Judge, the following order came to be passed on a consensus expressed by both the learned counsel before the High Court at the time of hearing. It would be useful and necessary to set out the said order :-