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2018 Supreme(MP) 347
IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Kalyan Singh and others v. Sanjeev Singh
First Appeal No. 211 of 2002 (Gwalior); against the judgment and decree dated 28.11.2002 passed by the Additional District Judge, Dabra, District Gwalior in Civil Suit No. 1/2000;
Decided on 19.4.2018
Prashant Sharma and Sarvesh Sharma for appellants;
Anand V. Bhardwaj for respondent.
Headnote:(1) Civil P. C., 1908 -- O. 41 R. 27 -- Stamp Vendor summoned in trial Court by appellants themselves -- appeared with original record -- given up by appellants themselves -- cannot pray in appeal that original record of Stamp Vendor be requisitioned. [Para 14
(2) Civil P. C., 1908 -- O.26 R. 10A r/w O.16 R.6 -- application at appellate stage for examination by handwriting expert --nothing in application as to why such application was not filed before trial Court -- plea that it was not advised by their counsel -- cannot be accepted -- no leniency can be shown to litigant on ground that counsel engaged by him was not professionally competent. [Para 15
(3) Practice -- very lenient view ignoring mistake of lawyer would adversely affect rights of other litigant -- litigant who engages lawyer having less knowledge, has to suffer for his choice -- no leniency can be shown to the detriment of interest of other litigant on ground that counsel was not professionally competent - professional incompetence of lawyer cannot be presumed. [Para 15
(4) Civil P. C., 1908 -- O.41 R.27 -- Evidence Act, 1872 -- S.114 -- application to take copy of register of Stamp Vendor on record -- appellants themselves had summoned Stamp Vendor along with original register -- he appeared before trial Court but was given up by appellants themselves -- it can be presumed that he would have deposed against appellants -- application cannot be allowed. (2015) 1 SCC 677 referred to. [Para 16
(5) Evidence Act, 1872 -- Ss.101, 102 and 103 -- burden of proof and onus of proof are two different aspects -- burden of proof never shifts but onus of proof keeps on shifting, subject to evaluation of evidence. AIR 1964 SC 136, (2003) 8 SCC 752 and (2013)2 SCC 606 followed. [Para 18
(6) Evidence Act, 1872 -- Ss. 101, 102, 103 and 114 -- initial burden to prove that agreement to sell was executed by defendant -- on plaintiff/respondent -- not only examined himself in support of his contentions but also examined attesting witnesses -- onus of proof discharged by him -- shifted to appellants -- appellant No. 1 disputed stamp paper -- summoned Stamp Vendor but did not examine him although he was present in Court -- adverse inference can be drawn against appellant No. 1 -- appellants failed to prove that agreement to sell is a forged document and does not contain signatures of appellant No. 1. [Paras 18 & 20
(7) Specific Relief Act, 1963 -- Ss. 10, 20 and 34 proviso --Transfer of Property Act, 1882 -- S. 55 -- relief of possession can be treated as implied in relief for specific performance of contract -- after decree for specific performance of contract is passed, defendant shall be called upon to execute sale deed and seller shall be under obligation to hand over possession. [Para 21
(8) Specific Relief Act, 1963 -- S.16 (c) -- specific pleading in unamended plaint about readiness and willingness -- evidence in this regard never challenged in cross examination -- it was not necessary for plaintiff to file proof that remaining amount is ready with him -- once it is claimed that plaintiff is ready and willing to perform his part of contract, and if it is not challenged by defendants, then it can be safely held that plaintiff has proved his readiness and willingness to perform his part of contract. (2009)17 SCC 27 followed. [Para 22
(9) Evidence Act, 1872 -- S.73 -- respondent/plaintiff discharged his burden to prove that agreement to sell was signed by defendant No. 1/appellant No. 1 -- appellants failed to discharge their onus to prove that it did not contain signatures of appellant No. 1/defendant No. 1 -- no material illegality committed by trial Court in comparing signatures. [Para 25
¼1½ flfoy izfØ;k lafgrk] 1908 && vk-41 fu- 27 && Lo;a vihykFkhZx.k }kjk LVkai foØsrk fopkj.k U;k;ky; esa leu fd;k x;k && ewy vfHkys[k ds lkFk milatkr gqvk && Lo;a vihykFkhZx.k }kjk R;kx fn;k x;k && vihy esa izkFkZuk ugha dj ldrs fd LVkai foØsrk dk ewy vfHkys[k eaxk;k tk,A ¼iSjk 14
¼2½ flfoy izfØ;k lafgrk] 1908 && vk-26 fu-10d lgifBr vk-16 fu- 6 && gLrys[k fo'ks"kK }kjk ijh{kk gsrq vihyh izØe ij vkosnu && vkosnu esa bl ckjs esa dqN ugha fd ,slk vkosnu fopkj.k U;k;ky; ds le{k D;ksa Qkby ugha fd;k x;k && vfHkokod~ fd muds dkmUlsy us mldh lykg ugha nh && Lohdkj ugha dh tk ldrh && eqdnesckt ls bl vk/kkj ij ujeh ugha cjrh tk ldrh fd mlds }kjk eqdjZj dkmUlsy O;kolkf;d :i ls l{ke ugha FkkA ¼iSjk 15
¼3½ izFkk && odhy dh Hkwy vuns[kh djrs gq, vR;f/kd uje #[k viukus ls vU; eqdnesckt ds vf/kdkj izfrdwyr% izHkkfor gksaxs && tks eqndesckt de Kku okyk odhy eqdjZj djrk gS mls vius p;u ds fy, Hkksxuk gkxk && vU; eqnesckt dk vfgr djrs gq, bl vk/kkj ij ujeh ugha fn[kkbZ tk ldrh fd dkmUlsy O;kolkf;d :i ls l{ke ugha Fkk && odhy dh O;kolkf;d v{kerk dh mi/kkj.kk ugha dh tk ldrhA¼iSjk 15
¼4½ flfoy izfØ;k lafgrk] 1908 && vk-41 fu-27 && lk{; vf/kfu;e] 1872 && /kkjk 114 && LVkai foØsrk ds jftLVj dh izfr vfHkys[k ij ysus ds fy, vkosnu && Lo;a vihykFkhZx.k us LVkai foØsrk dks ewy jftLVj ds lkFk leu fd;k Fkk
&& og fopkj.k U;k;ky; ds le{k milatkr gqvk ijarq Lo;a vihykFkhZx.k }kjk R;kx fn;k x;k && mi/kkj.kk dh tk ldrh gS fd og vihykFkhZx.k ds fo#) vfHklk{; nsrk && vkosnu eatwj ugha fd;k tk ldrkA ¼2015½1 ,l lh lh 677 fufnZ"VA ¼iSjk 16
¼5½ lk{; vf/kfu;e] 1872 && /kkjk 101] 102 rFkk 103 && lcwr dk Hkkj rFkk lkfcr djus dk Hkkj ¼vksul½ nks fHkUu igyw gSa && lcwr dk Hkkj dHkh varfjr ugha gksrk ijarq lkfcr djus dk Hkkj] lk{; ds ewY;kadu ds v/;/khu] varfjr gksrk jgrk gSA , vkb vkj 1964 ,l lh 136] ¼2003½8 ,l lh lh 752 rFkk ¼2013½2 ,l lh lh 606 vuqlfjrA ¼iSjk 18
¼6½ lk{; vf/kfu;e] 1872 && /kkjk 101] 102] 103 rFkk 114 && ;g lkfcr djus dk izkjafHkd Hkkj fd foØ; djkj izfroknh }kjk fu"ikfnr fd;k x;k Fkk
&& oknh izR;FkhZ ij && vius ladFkuksa ds leFkZu esa Lo;a dh gh ijh{kk ugha dh vfirq vuqizek.kd lk{khx.k dh Hkh ijh{kk dh && lkfcr djus ds Hkkj dk mlds }kjk fuoZgu fd;k x;k && vihykFkhZx.k dks varfjr gqvk && vihykFkhZ Ø- 1 us LVkai i= dks fooknxzLr fd;k && LVkai foØsrk dks leu fd;k ijarq mldh ijh{kk ugha dh ;|fi og U;k;ky; esa mifLFkr Fkk && vihykFkhZ Ø- 1 ds fo#) izfrdwy fu"d"kZ fudkyk tk ldrk gS && vihykFkhZx.k lkfcr djus esa vlQy jgs fd foØ; foys[k dwVjfpr nLrkost gS vkSj ml ij vihykFkhZ Ø- 1 gLrk{kj ugha gSaA ¼iSjk 18 ,oa 20
¼7½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 10] 20 rFkk 34 ijarqd
&& laifÙk varj.k vf/kfu;e] 1882 && /kkjk 55 && dCts ds vuqrks"k dks lafonk ds fofufnZ"V ikyu ds vuqrks"k esa foof{kr ekuk tk ldrk gS && lafonk ds fofufnZ"V ikyu ds fy, fMØh ikfjr gksus ds i'pkr~ izfroknh ls foØ; foys[k fu"ikfnr fd;k tkuk visf{kr gksxk vkSj foØsrk dCtk lkSaius dh ck/;rk ds v/khu gksxkA ¼iSjk 21
¼8½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 16¼x½ && vla'kksf/kr okni= esa rS;kjh vkSj jtkeanh ds laca/k esa fofufnZ"V vfHkopu && bl ckjs esa lk{; izfrijh{kk esa vk{ksfir ugha && oknh ds fy, ;g lcwr Qkby djuk vko';d ugha Fkk fd 'ks"k jkf'k mlds ikl miyC/k gS -- ;g nkok fd, tkus ij fd oknh lafonk ds vius Hkkx dk ikyu djus ds fy, rS;kj vkSj jtkean gS] vkSj ;fn ;g izfroknhx.k }kjk vk{ksfir ugha fd;k tk,] ;g fujkin :i ls vfHkfu/kkZfjr fd;k tk ldrk gS oknh us lafonk ds vius Hkkx dk ikyu djus dh rS;kjh vkSj jtkeanh lkfcr dj nh gSA ¼2009½17 ,l lh lh 27 vuqlfjrA ¼iSjk 22
¼9½ lk{; vf/kfu;e] 1872 && /kkjk 73 && izR;FkhZ@oknh us ;g lkfcr djus ds vius Hkkj dk fuoZgu fd;k fd foØ; djkj izfroknh Ø- 1 vihykFkhZ Ø-1 }kjk gLrk{kfjr fd;k x;k Fkk && vihykFkhZx.k ;g lkfcr djus ds vius Hkkj dk fuoZgu djus esa vlQy jgs fd mlesa vihykFkhZ Ø- 1 izfroknh Ø- 1 ds gLrk{kj ugha Fks && gLrk{kjksa dh rqyuk djus esa fopkj.k U;k;ky; }kjk dksbZ rkfRod vfu;ferrk ugha dh xbZA ¼iSjk 25
1. This first appeal under section 96 of CPC has been filed against the judgment and decree dated 28.11.2002, passed by Additional District Judge, Dabra, District Gwalior in Civil Suit No. 1/2000, by which the suit for declaration of title and specific performance of contract filed by the respondent/plaintiff has been decreed.
2. The necessary facts for the disposal of the present appeal in short are that defendant No. 1/appellant No. 1 Kalyan Singh is the owner of the plot ad-measuring 900 sq. ft. situated in Ward No. 16, Shiv Colony, Dabra, District Gwalior (for brevity, this property shall be referred as the ‘’disputed property’’). The ‘’disputed property’’ is a part of survey No. 1850/1 and there is a 10 feet wide road on the East, whereas there is a boundary wall of Sugar Mill on the West. On the North side, house of one Baljeet is situated, whereas on the South side, boundary wall of Sugar Mill is situated. It was pleaded that since this plot was situated near the house of the plaintiff/respondent and the plaintiff/ respondent was using the said plot for the last 15 years for tying his cattle, therefore, he was in possession thereof. On 29.11.1999, the defendant No. 1/ appellant No. 1 executed an agreement to sell in favour of the plaintiff/ respondent for a consideration amount of Rs. 62,000/-. At the time of execution of agreement to sell, an amount of Rs.15,000/- was paid by the plaintiff/ respondent by way of advance and the remaining amount of Rs. 40,000/- was agreed to be paid at the time of execution of the sale deed. In the agreement to sell itself, the defendant No. 1/ appellant No. 1 had admitted that the said plot is in possession of the plaintiff/ respondent. As per the agreement to sell, it was agreed upon by the parties that the sale deed shall be executed by 30.6.2000 and the plaintiff would bear the registry expenses. It was pleaded that the plaintiff and the defendants No. 2 to 5 are the neighbourers. The defendants No. 2 to 5 are the members of the same family and, therefore, the plaintiff had given then an information about the execution of agreement to sell with the defendant No. 1/ appellant No. 1 and, thus, the defendants No. 2 to 5 were aware of the fact that the plaintiff has entered into an agreement to purchase the disputed property. It was further pleaded that as per the agreement to sell, it was agreed upon between the parties that the sale deed shall be executed by 30.6.2000, but even prior to that, the defendant No. 1 dishonestly with an intention to cause loss to the plaintiff/respondent, executed a registered sale deed in favour of the defendant No. 2/appellant No. 2 on 25.2.2000, whereas the said document was nothing but a sham document. Thus, it was pleaded that after executing an agreement to sell in favour of the plaintiff/ respondent, the defendant No. 1/ appellant No. 1 had no right or title to sell the disputed property to the defendant No. 2/appellant No. 2. Since the sale deed is without any right, therefore, the defendant No. 2/ appellant No. 2 does not get any title or possession over the disputed property. The plaintiff/respondent, as per agreement to sell, was always ready and willing to perform his part of contract and even till today, he is ready and willing to do so. It was further pleaded that prior to expiry of the date fixed for execution of sale deed in the agreement to sell, the appellant No. 1/ defendant No. 1 had no right or title to execute the sale deed in favour of the appellant No. 2/defendant No. 2. Even otherwise, if he was in urgent need of money, then he could have issued a notice to the plaintiff/ respondent and if the appellant No. 1/ defendant No. 1 had expressed the need of money and had insisted for immediate execution of sale deed, then the plaintiff/ respondent would have got the sale deed executed even prior in time. It was further pleaded that the defendants No. 2 to 5 are aware of the fact that the plaintiff/ respondent is in possession of
