JUDGMENT :

NIDHI GUPTA, J.

CM-1160-C-2023

Prayer in the first Application under Order 41 Rule 27 r/w Section 151 CPC is for additional evidence of concerned/competent official from Security Press Nasik, Maharashtra with respect to the date of printing of stamp paper containing agreement to sell dated 10.07.2001 i.e. Ex. D1, alongwith the connected record.

2. It is pertinent to note that during the course of trial of the suit before the learned Civil Judge, an application was moved by the appellants for sending the original of the purported agreement to sell dated 10.07.2001 between the defendants to the Security Press, Nasik for getting a report regarding the date of issuance of the said stamp paper. The said application was dismissed on 09.09.2011. Whereafter, the appellants moved this Court vide Civil Revision No. 5913 of 2011, which also came to be dismissed on 04.07.2012. Against the said order of dismissal, the appellants moved to Hon'ble Supreme Court by filing SLP (C) No. 6981 of 2011, which came to be dismissed vide order dated 05.04.2013 but with liberty as follows: -

"We do not see any reason to interfere with the impugned order passed by the High Court. The special leave petition is dismissed.

However, the petitioners shall be at liberty to raise the objections with regard to the authenticity of the agreement dated 10.07.2001 at the appropriate time before the Trial Court."

3. Thus, in view of the fact that the previous application of the applicant/appellant for leading same/similar additional evidence in respect of the agreement to sell dated 10.07.2001, stands dismissed right up to the Hon'ble Supreme Court as such, present application is not maintainable and accordingly stands dismissed

RSA-314-2023 (O&M)

Plaintiffs are in Second Appeal against the concurrent judgments and decrees of the learned Courts below; whereby suit filed by the appellants for possession by way of specific performance of the Agreement to Sell dated 10.08.2001; or suit for recovery of Rs.12 lakhs alongwith interest, has been partly decreed by both the Courts below for alternative relief of recovery of principal amount of Rs.6 lakhs from defendant No.1 alongwith 12% interest.

2. It is inter alia submitted by learned counsel for the appellant/plaintiffs that defendant No.1 was owner of suit land as described in the plaint. Defendant No.1 had entered into Agreement to Sell dated 10.08.2001 with the plaintiff No.1 and her deceased husband, namely, Buta Mal @ Rs.11,70,000/- per acre. Plaintiffs had paid a sum of Rs.6 lakhs by way of earnest money. Target date for execution of Sale deed was set for 16.08.2002, which was ultimately extended to 31.12.2002.

3. Learned counsel submits that the appellants had duly proved the execution of the Agreement dated 10.08.2001. The suit of the appellants has been partly decreed only for refund of earnest money on the ground that defendant No.1 had produced an Agreement dated 10.07.2001 allegedly executed by him in favour of defendant No.2 as per which, defendant No.1 had sold the suit land in favour of defendant No.2. It is submitted that accordingly, as the Agreement in favour of defendant No.2 was prior in time to that of the appellants, suit of the appellants was partly decreed only for refund of earnest money.

4. Learned counsel submits that learned Courts below could not have denied grant of specific performance to the appellants as they failed to appreciate that the alleged Agreement dated 10.07.2001 is a sham document created subsequently by the defendants only in order to defeat the rights of the appellants.

5. It is submitted by learned counsel that the learned Subordinate Courts have erred in ignoring the testimony of appellant No. 2 Dharam Paul Grover s/o Buta Mal as PW-4, wherein, he specifically proved that the purported agreement between defendant No. 1 and defendant No. 2 was a sham document, created subsequently in order to defeat the rights of the appellants. The said witness specifically stated that there