SHER SINGH Vs. RAMKISHAN RATHORE

JUDGEMENT

(1.) This second appeal, under Sec. 100, CPC, has been filed against the judgment and decree dtd. 15/5/2024 passed by Principal District Judge, Shivpuri in RCA No. 71/2023 thereby reversing the judgment and decree dtd. 18/7/2023 passed by I Civil Judge, Senior Division, Shivpuri in RCSA No. 1/2021.

(2.) Present appeal has been filed by defendant no.1. Facts necessary for disposal of present appeal, in short, are that respondent no.1/plaintiff filed a suit for specific performance of contract pleading inter alia that appellant/defendant no.1 was co-owner and in possession of Survey No. 1253 area 1.47 hectares situated in Village Ratore, Tahsil and District Shivpuri. Defendant No.1 had share to the extent of 0.32 hectare. Since defendant no.1/appellant was in need of money, therefore, he entered into an agreement to sell 0.20 hectare of land for a consideration amount of Rs.9.00 lacs and, accordingly, a written agreement was executed on 27/04/2019. Plaintiff/respondent no.1 also paid an amount of Rs.3,00,000.00 by Cheque No.88478 dtd. 27/4/2019. Since defendant no.1/appellant was co-sharer and partition had not taken place, therefore, it was assured by defendant no.1 that he would get the land partitioned within a period of six months i.e. up to 30/10/2019 and thereafter he would execute the sale deed after receiving an amount of Rs.6.00 lacs. It was further pleaded that defendant no.1, in spite of accepting the advance amount, did not take any action for demarcation and partition. Whenever plaintiff requested defendant no.1 to initiate the aforesaid proceedings, then he always avoided the same and, accordingly, the period of six months expired. Thereafter, even for a further period of six months, no action was taken by defendant no.1 for partition and demarcation. As a result, execution of sale deed was not possible. It is further pleaded that plaintiff was always ready and willing to execute the sale deed and was in possession of remaining sale consideration, as well as, expenses for registration etc. It was further pleaded that plaintiff is still in possession of aforesaid funds and he is ready and willing to get the sale deed executed. It is the case of plaintiff that though defendant no.1 received an amount of Rs.3.00 lacs but he was intending to cheat from very inception that he would not execute the sale deed. It was further pleaded that in spite of multiple reminders, defendant no.1 did not take any action for demarcation and partition. It was further pleaded that thereafter defendant no.1 executed another agreement to sell in favor of one Virendra Rathore and has also received an amount of Rs.3.00 lacs on 9/10/2019. It was further pleaded that since defendant no.1 has already executed agreement to sell in favour of plaintiff, therefore, he does not have right or title to enter into agreement to sell with any other person. Thus, it was pleaded that in view of written agreement dtd. 27/04/2019, plaintiff is still ready and willing to get the sale deed executed after making payment of remaining consideration amount of Rs.6.00 lacs. It was further pleaded that on 28/07/2020 plaintiff had given a notice to defendant no.1, but defendant no.1 neither gave any reply nor executed the sale deed. Accordingly, another notice dtd. 3/9/2020 was sent to which a wrong reply was sent by defendant no.1 and he did not take any action to execute the sale deed. Thus, suit for specific performance of contract was filed.

(3.) Defendant no.1 filed his written statement and admitted that he has share in the property as pleaded by the plaintiff. He claimed that co-sharers have not been made party and further claimed that Survey No.1253 has not been partitioned so far. It was further pleaded by defendant no.1 that he had entered into agreement to sell, but period for execution of sale deed has expired and, therefore, plaintiff is not entitled to get the advance amount returned from defendant no.1. It was further pleaded that defendant no.1 had not assured that he would get the land demarcated and partitioned. It was further pleaded that defendant no.1 had never informed plaintiff that how much time would be required for partition. Since plaintiff did not approach defendant no.1 to execute the sale deed within six months, therefore, now the agreement has come to an end. It was further pleaded that even the sale deed could have been executed in respect of unpartitioned land and therefore it is clear that plaintiff had deliberately not executed the sale deed and now the time for execution of sale deed has come to an end. It was further pleaded that subsequent agreement which was entered into by defendant No.1 with Virendra Rathore was executed after the agreement with plaintiff had expired. Even Virendra Rathore did not get the sale deed executed, therefore, the agreement which was entered into between defendant No.1 and Virendra Rathore has also expired. It was also pleaded that plaintiff has no right to file suit after the period of execution of sale deed has expired.