BHARAT JAROLI Vs. DR. RAMESH DAK AND ANOTHER

JUDGEMENT

(1.) This miscellaneous appeal is filed challenging the order passed by the learned Additional District Judge, Neemuch in Civil Suit No. 1 -A/2016 dated 3.9.2016, whereby the learned Additional District Judge, dismissed the application filed by the plaintiff under Order 39 rules 1 and 2 read with section 151 CPC.

(2.) The relevant facts for disposal of this appeal are that the appellant/ plaintiff filed a civil suit before the learned Additional District Judge for declaration and specific performance of contract, possession and permanent injunction. According to the appellant, the respondent No. 1 was owner of land bearing Survey Nos.2010, 2012 and 2013 having area 1.418 hectare. He sold part of the land having area of 0.716 hectare to the appellant by a registered sale deed. The suit was filed for the remaining portion of the land having area 0.702 hectare. As per averments made in the plaint, in respect of this portion of the land, which was suit land, before the learned District Judge, an oral agreement was entered into between the appellant and the respondent No. 1. It was agreed to between them that the appellant would develop this portion of the land also and would pay the plaintiff Rs.6 Crores, cost of the land. To avoid various formalities under the Registration Act and Stamp Act, agreement was not reduced in writing. The respondent No. 1 received Rs. 1 Crore cash from the plaintiff and no written receipt was passed by respondent No. 1. It was also agreed between the plaintiff and respondent No. 1 that the appellant would develop the land constructing commercial and residential accommodation on it and by selling the accommodation to third party, he would pay the amount to the appellant. Respondent also executed one power of attorney in favour of the appellant. In pursuance to this agreement, according to the appellant, he received Rs. 1 Crore from one Vidhisha Patidar and Rs.21,50,000/- from Vinod Yadav and various amounts from other persons. After the appellant entered into an agreement with these purchasers, the respondent No. 1 gave a notice through his Advocate and rescind the contract immediately. He showed himself to be the owner and in possession of the suit property and also he published general notice in a newspaper stating therein that he withdrew the power of attorney given to the present appellant on 17.10.2015. It was also stated by the appellant that when the appellant was under threat given by somebody to his life, the respondent No. 1 taking advantage of his state of mind took possession of the suit property. As such, under this factual background the plaintiff filed suit for specific performance and possession etc., against respondent No. 1.

(3.) Respondent No. 1 in the reply stated that he executed a power of attorney in favour of the appellant on 10.11.2011 and he engaged the appellant as contractor to construct commercial and residential accommodation over the remaining land having area 0.716 hectare. The land was never sold to the appellant. The language used in the power of attorney did not mention that the land was sold to the appellant by respondent No. 1. Subsequently, according to the respondent No. 1, the appellant posed himself as owner of the land and started selling the land to various persons and, thereafter, the power of attorney was withdrawn/cancelled.