Point of Law : Plaintiff was never in possession of the subject property and it was in the exclusive possession of the defendants.

JUDGMENT :

This civil second appeal is preferred against the judgment and decree dated 03.05.2019 passed by the learned Additional District Judge Malpura District Tonk (for brevity, “the learned Appellate Court”) in CRA No.3/2013 whereby, while dismissing the appeal, the judgment and decree dated 31.10.2012 passed by the learned Civil Judge (Junior Division) Todaraisingh, District Tonk (for brevity, “the learned trial Court”) in Civil Suit No.2/2005 dismissing the suit filed by the appellant/plaintiff (for brevity, “plaintiff”) for specific performance of the agreement and declaration, has been affirmed.

2. The relevant facts in brief are that the plaintiff filed a suit against the respondents/defendants (for brevity, “defendants”) stating therein that Late Jamal Khan, the predecessor-in-interest of the defendants, have executed an agreement to sell dated 11.09.1987 in her favour of his agricultural land comprising of Khasra No.4505 measuring 0.19 hectare and Khasra No.4506 measuring 0.54 hectare Ward No.16, Village Todaraisingh, District Tonk and its possession was also handed over to her. It was averred that despite her repeated request, Late Shri Jamal Khan did not execute the sale deed of the subject land in her favour and after his death, the defendants No. 1 to 5, who are bound by the terms of the agreement dated 11.09.1987, instead of executing the sale deed, are trying to interfere in her use and occupation of the subject land. Thus a decree of declaration and specific performance of the agreement was prayed for.

3. The defendants in their written statement denied execution of any agreement to sell dated 11.09.1987 by Late Shri Jamal Khan in plaintiff’s favour. It was stated that the subject land was not under exclusive Khatedari of Late Jamal Khan and he had no right to transfer it at the relevant time. It was further submitted that the subject land was under their exclusive possession. It was, therefore, prayed that the suit be dismissed.

4. Seven Issues were settled by the learned trial Court on the basis of pleadings of the parties. After recording of the evidence of the respective parties, the suit was dismissed by the learned trial Court vide its judgment and decree dated 31.10.2012 which has been affirmed by the learned Appellate Court vide its judgment and decree dated 03.05.2019.

5. Assailing the judgment and decree, learned counsel for the plaintiff submits that while dismissing the suit, the learned Court did not appreciate that she was able to establish execution of the agreement to sell dated 11.09.1987 by Late Shri Jamal Khan, the predecessor-in-interest of the defendants in her favour. She, therefore, prays that this civil second appeal be allowed, the judgment and decree dated 03.05.2019 be quashed and set aside and the suit filed by the her be decreed.

6. Heard. Considered.

7. A perusal of the findings of the learned Court reveals that on the basis of oral as well as documentary evidence on record, it has been held that the plaintiff could not establish that after partition of the subject property amongst the co-sharer, on 11.09.1987, the date on which the sale agreement was allegedly executed by Late Shri Jamal Khan, the subject property was under his exclusive Khatedari and possession; rather, it has been held that it fell in his exclusive Khatedari on 05.07.1989. It is further held that neither it could be established that she had handed over a sum of Rs.3000/- in cash towards sale consideration to Late Shri Jamal Khan nor, that she received possession of the subject property under the sale agreement. While, the plaintiff as PW-1 has failed to identify signature of Late Shri Jamal Khan on the sale agreement, appreciating the testimony of Shri Ram Pal Kurmi (PW-2), the deed writer and Shri Abdul Rasid (PW-3), attesting witness to the sale agreement and brother of the plaintiff, it has been held that neither the execution of the sale agreement is proved nor, it is proved that sale consideration exchanged han