The absence of documentary evidence to support claims of an oral agreement in property transactions leads to dismissal of the appeal for specific performance.

ORDER :

(NUPUR BHATI, J.)

1. The present civil misc. appeal has been filed under Order 43 Rule 1 of theCPC with the following prayers :-

“It is therefore most humbly prayed that the present appeal may kindly be allowed and the order dated 26.07.2024 passed by learned Additional District Judge No.3, Bhilwara, Camp Mandalgarh may kindly be set aside, and the application under Order 39 Rules 1 and 2 CPC filed by the appellant along with the suit may kindly be allowed with costs.”

2. Brief facts of the case are that the appellant filed a suit for specific performance and permanent injunction against the respondent in the court of learned District Judge, Bhilwara, stating inter alia that the respondent disclosed before him that he has purchased 1/7th share of land measuring 02 Bigha 11 Biswa in Araji no. 21 in village Fatehpura, Patwar Area Uma ji ka Kheda, Tehsil Bijoliya, District Bhilwara (hereinafter referred to as 'the land in question') from one Sita Devi, daughter of Chittarmal Salawat, wife of Dhanna Lal Gaur through registered sale deed dated 09.02.2010. He intends to and ready to sell the land in question purchased by him for consideration of Rs. 20,00,000/-. The appellant agreed to purchase the land in question on 17.03.2016 for consideration of Rs. 20,00,000/- and a sale agreement was entered into between the appellant and respondent, and respondent received Rs. 3,00,000/- as advance money from the appellant. As per instructions of the respondent, the appellant withdrew the said amount from his bank account on 17.03.2016 and immediately deposited in the State Bank of Bikaner and Jaipur, Bijoliya in the account of his business firm Ashutosh Road Lines and on the same day the respondent handed over the original copy of registered sale-deed dated 09.02.2010 executed in his favour. It was agreed that whenever the appellant will ask, the respondent will execute sale deed in respect of the 1/7 share of the land in question and will get the same registered and will receive remaining amount of consideration. The appellant requested the respondent many times to execute sale deed in respect of the land in question and receive remaining amount of consideration, however, the respondent avoided to do so. On 19.10.2016, the appellant got a notice through his counsel to the respondent calling upon him to execute registered sale deed in respect of the land in question in compliance of the agreement dated 17.03.2016 and receive remaining amount of consideration. However, the respondent has not obeyed the agreement and has not executed sale deed in respect of the land in question. The appellant prayed for a decree directing the respondent no.1 to execute sale-deed in respect of the land in question, get the same registered and possession of the land in question be delivered to the appellant. Along with the suit, the appellant also filed an application under Order 39 Rules 1 and 2 of CPC reiterating the averments made in the plaint and prayed that by a temporary injunction, the respondent may be restrained from selling, mortgaging or transferring in any manner the land in question to anybody. The said suit and application for temporary injunction were transferred to the court of learned Additional District Judge No.3, Bhilwara. The respondent appeared before the court and filed reply to application for temporary injunction. The learned Additional District Judge No.3, Bhilwara, Camp Mandalgarh passed an order dated 26.07.2024 whereby the application under Order 39 Rules 1 & 2, CPC filed by the appellant was rejected. Aggrieved by the order dated 26.07.2024, the appellant preferred the instant misc. appeal.

3. Learned counsel for the petitioner submits that the learned Trial Court has erred while rejecting the application of the appellant filed under Order 39 Rule 1 and 2 CPC as this fact is not appreciated that the respondent-defendant had entered an oral agreement with the petitioner for which a consideration of Rs.3 lakh was made in favour of