The burden of proof on the defendant to disprove the existence of the agreement and the inadmissibility of evidence on a plea not raised in the pleadings.

JUDGMENT :

1. The plaintiff has filed this appeal against the judgment and decree passed by the learned First Additional District Judge Raigarh, District Raigarh (C.G.) in Civil Suit No. 38-A of 2011 dated 18.08.2011 whereby the civil suit filed by the plaintiff for specific performance of the contract was dismissed.

2. The facts of the present case are that the defendant is the recorded owner of the agricultural land situated in Village Singpuri, Post-Baradoli, Tehsil Pussore, District Raigarh comprising survey Nos. 46, 91/14, 91/15 and 119/4, total ad-measuring 0.845 hectares. He entered into an agreement to sell with the plaintiff on 02.05.2008 and the entire consideration amount i.e. Rs.2,50,000/- was paid on that very date. According to the conditions of the agreement, the defendant had to execute the sale deed in favour of the plaintiff by June 2009. It is further pleaded that the plaintiff made many requests to execute the sale deed but no heed was given by the defendant. Thereafter, a registered notice through the advocate was sent to the defendant on 16.10.2008 but no response was given, thereafter the plaintiff filed a civil suit on 23.10.2009 seeking a decree of specific performance of the contract and in the alternative, refund of the earnest amount along with interest @ 3% per month. The defendant filed the written statement and denied the plaint averments. The defendant specifically pleaded that no agreement was executed and the amount of consideration was never received by him.

3. Learned trial Court framed issues after going through the pleadings of respective parties and held that the plaintiff could not prove that any agreement was entered into between the parties on 02.05.2008 and he further could not prove readiness and willingness and consequently, the civil suit filed by the plaintiff was dismissed.

4. Learned counsel appearing for the appellant/plaintiff would submit that the entire amount of consideration was paid at the time of execution of the agreement to sell therefore there was no necessity for the plaintiff to prove readiness. With regard to willingness, he would argue that many requests were made for the execution of the sale deed and a registered legal notice was also sent but no reply was given by the defendant. He would further argue that in the written statement the defendant has not denied the contents of the plaint. He would further contend that the defendant in his statement has developed a new story that on account of the Tractor loan the agreement was executed but there is no pleading with regard to the same in the written statement. He would argue that the evidence beyond pleading is not admissible.

In support of his contention, he has placed reliance on the judgments of the Hon’ble Supreme Court rendered in the matters of Ravinder Singh vs. Janmeja Singh and Others, reported in (2000) 8 SCC 191, Jaspal Kaur Cheema and Another vs. Industrial Trade Links and Others, reported in (2017) 8 SCC 592 and P. Ramasubbamma vs. V. Vijayalakshmi, reported in AIR 2022 SC 1793. He has also placed reliance on the judgment of this Court rendered in the matter of Sheikh Baboo vs. Madanlal Jaiswal and Anr. reported in AIR 2012 Chh. 155.

5. On the other hand, learned Senior counsel would oppose the submissions made by counsel for the appellant. She would submit that the learned trial Court has dismissed the civil suit after recording a well-reasoned finding. She would further submit that a Tractor was purchased from the plaintiff and therefore, as a security, the agreement in question was executed by the defendant and he, in his evidence, has elaborated the contents of the agreement and the pleading made in the last part of paragraph 4. She would further argue that Dinesh Yadav (PW-2) has not supported the due execution of the agreement and therefore, the appeal deserves to be dismissed.

6. I have heard counsel appearing for the parties and perused the documents placed on record.

7. From a perusal of the record,