AMIT JAIN Vs. LATE NEMI CHAND JAIN (DECEASED)

JUDGEMENT

(1.) Challenge in this First Appeal is to the judgment and decree dtd. 25/9/2018 passed in Civil Suit No.41-A/2011 by 5th Additional District Judge, Bilaspur, District Bilaspur (C.G.) whereby, the learned Court below dismissed the suit filed by the appellant-plaintiff for specific performance of agreement to sell, holding that the appellant-plaintiff has failed to prove his suit.

(2.) It is not in dispute that appellant/plaintiff - Amit Jain is the grandson of defendant No.1-Nemi Chand Jain (Deceased) being the son of Sheetalchand Jain, son of defendant No.1-Nemi Chand Jain. Respondent No.2- Rishabh Jain is the younger son of defendant No.1-Nemi Chand Jain (Deceased). Defendant/Respondent No.1 Nemichand Jain left for heavenly abode on 19/4/2017 during the pendency of suit.

(3.) Brief facts of the case are that appellant-plaintiff is resident of House No.3/110, Radha Puram Estate, District Mathura (U.P.). His grandfather, defendant No.1-Nemi Chand Jain (through LRs), had owned and possessed the piece of land bearing Khasra No.37, total area 16.50 acre, which is situated at Mauja Pendari, P.H. No. 25, Tehsil Takhatpur, District Bilaspur (C.G.) (hereinafter referred to as 'Suit Property'). Appellant-plaintiff used to travel Bilaspur and Raipur often for his business and personal purpose. Appellant-plaintiff visited Raipur and at the relevant time defendant No.1-Nemi Chand Jain (through LRs) who was grandfather of the appellant-plaintiff called him along with a non-judicial stamp of Rs.50.00. On the same day, the appellant-plaintiff went to Bilaspur (C.G.) and handed over a stamp paper of Rs.50.00 to deceased Nemi Chand Jain, who sought financial help of Rs.5,00,000.00 (Rs. Five Lac only) for constructing Nemi Chand Jain Cancer Institute and Research Center as also requested him to buy his 16.50 acre land situated in Bilaspur (Suit Property). It is alleged that Nemi Chand, defendant No.1- (through LRs), entered into a notarized agreement with appellant-plaintiff in relation to sell of his 16.50 acre land (Suit Property). The appellant-plaintiff paid advance of Rs.5,00,000.00 (Rs. Five Lac only) as part payment for the Suit Property in presence of two witnesses and before the Notary at the place where the agreement had to be notarized. It has been further alleged that, under the agreement the parties agreed to sell and purchase Suit Property @ Rs.1,25,000.00 per acre. This agreement was executed for total consideration of Rs.20,62,500.00 for 16.50 acres land and Rs.5,00,000.00 was advanced by the appellant-plaintiff as part payment. The agreement was duly signed by defendant No.1-Nemi Chand Jain as well as by the appellant-plaintiff and was notarized by the public notary before two witnesses. It was agreed between the parties that the appellant-plaintiff was required to pay balance amount of Rs.15,62,500.00 within four years from the date of the agreement and after receiving the same, defendant No.1-Nemi Chand Jain (through LRs) would execute sale deed in favour of the appellant-plaintiff in respect of suit property and hand over possession of the same. Appellant-plaintiff repeatedly reminded and expressed his willingness to defendant No.1-Nemi Chand Jain (through LRs) that he is ready to give balance amount of Rs.15,62,500.00 so that sale deed of the suit property could be executed but defendant No.1-Nemi Chand Jain did not pay heed to appellant-plaintiff's request. When Nemi Chand Jain refused to execute sale deed, appellant-plaintiff with the assistance of his other family members and relatives convinced him and thereafter defendant No.1-Nemi Chand Jain (through LRs) agreed to execute sale deed in next one year. The appellant-plaintiff agreed to that because of involvement of family members and he trusted upon Nemi Chand Jain because of his regard for the relationship with his grandfather. It is alleged that in the meanwhile, neither defendant No.1-Nemi Chand Jain (through LRs) disclosed the fact of execution of two registered illegal gift deeds in favour of his younger son Rishabh Jain (Defendant No.2 herein) nor the appellant-plaintiff could come to know about this. After some time, the appellant-plaintiff came to know that defendant No.2-Rishabh Jain fraudulently created two illegal gift deeds in his (defendant No.2) own favour. When the said fraudulent activity came to the knowledge of defendant No.1-Nemi Chand Jain (Deceased), he filed two Civil Suits, (1) Original Suit No.57-A/2010 and (2) Original Suit No.87-A/2010, before the Court of District Judge, Bilaspur (C.G.) seeking cancellation of both the illegal gift deeds . When appellant-plaintiff came to Bilaspur to make full and final payment of Rs.15,62,500.00, he came to know about the pendency of suits filed by defendant No.1. Thereafter, the appellant moved an application under Order 1 Rule 10 of the Civil Procedure Code, 1908 (for short 'CPC') for impleading himself as a necessary party to both the suits and published information with regard to the existing agreement to sell between him and defendant No.1-Nemi Chand Jain (through LRs) in relation to suit property and also published a notice informing the public at large that any kind of transaction in respect of Suit Property would be void and illegal in the eye of law since there exists an agreement to sell of the Suit Property. Defendant No.2 herein tried to pressurize the appellant-plaintiff and also extended life threat over phone not to pursue the civil suits at Bilaspur, the report of which was also lodged by the appellant-plaintiff at Govind Nagar Thana, Mathura against defendant No.2 and 3. Further, being aggrieved by non execution of the agreement by defendant No.1-Nemi Chand Jain (through LRs), the appellant-plaintiff has filed a Civil Suit No.41-A/2011 for specific performance of the agreement to sell dtd. 18/11/2005 before the District Court, Bilaspur (C.G.).