The main legal point established in the judgment is that the failure to prove the execution of the agreement to sale and the readiness and willingness to perform the contract, along with the admission of the defendant's title to the land, led to the dismissal of the plaintiffs' claim and the allowance of the defendant's claim for defalcation of title and possession.

JUDGMENT :

The learned counsel for the appellants is heard on the question of admission.

This appeal under Section 100 of the CPC has been preferred by the appellants/plaintiffs against the judgment and decree dated 20.12.2019 passed in Regular Civil Appeal 20-A/2017 and 21-A/2017 by the IInd Additional District Judge, Shujalpur, District Shujalpur arising out of the judgment and decree dated 10.08.2017 passed in Civil Suit No.136-A/2017 by the Ist Civil Judge, Class-II, District Shujalpur whereby their claim for specific performance of contract dated 18.04.1989 and for permanent injunction has been dismissed and the counter claim of defendant No.1/appellants has been decreed.

2. As per plaintiffs, Lakhanlal Nai, defendant No.1, was the owner of the suit land bearing survey No.454/3 area 0.418 hectare Gram Pipliya Nagar, Tehsil Kalapipal, District Shajapur. On 18.04.1989 he entered into an agreement with Chhotelal, husband of plaintiff No.1 and father of plaintiffs 2 to 7 for sale of the suit land in his favour at the rate of 2000/- per bigha. An agreement was also executed between them in that regard on 18.04.1989 upon payment of an amount of Rs.4000/- by Chhotelal to defendant No.1 followed by delivery of possession. Chhotelal remained in possession of suit land during his lifetime and after him the plaintiffs have been in possession thereof. Chhotelal requested defendant No.1 for execution of the sale deed in his favour on a number of occasions but he refused to do so on some pretext or of the other. Upon death of Chhotelal, plaintiffs requested defendant No.1 for execution of the sale deed but he did not do so and in the year 2011 specifically stated that he shall not execute the sale deed leading to institution of the instant suit.

3. The defendant No.1 contested the plaintiffs' claim by filing his written statement submitting inter alia that no agreement to sale was executed between him and Chhotelal, that the agreement set up by plaintiffs is forged and fabricated, that he had purchased the suit land on 29.04.1981 by way of a registered sale deed and has been in possession thereof ever since then, that plaintiffs have forcibly taken possession of the suit land from him in 2009 and have illegally got their possession recorded over the suit land in the revenue records. The defendant No.1 also laid a counter claim for declaration of his title to the suit land, for possession of the same from plaintiffs and for mesne profit. The plaintiffs filed their written statement to the counter claim of defendant No.1.

4. The trial Court held that plaintiffs have not been able to prove that defendant No.1 had entered into an agreement to sale with Chhotelal on 18.04.1989, that they have also failed to prove that they have always been ready and willing to perform their part of the contract, that defendant No.1 has also failed to prove that he is the owner of the suit land and that he is not entitled for possession of the same from plaintiffs though his counter claim is within time. In consequence, plaintiffs claim as well as counter claim of defendant No.1 both were dismissed.

5. Being aggrieved by the judgment and decree aforesaid, the plaintiffs as well as defendant No.1 preferred separate appeals before the Lower Appellate Court which have been heard and decided together by the impugned judgment. While plaintiffs' appeal has been dismissed, the appeal preferred by defendant No.1 has been partly allowed and he has been declared to be the owner of the suit land and has been held entitled for obtaining possession of the same from plaintiffs.

6. Learned counsel for the appellants submits that the Courts below have committed a gross error of law in holding that plaintiffs have failed to prove the execution of the agreement dated 18.04.1989 by defendant No.1 in favour of Chhotelal. The evidence adduced by plaintiffs in that regard has totally been misread and mis-appreciated by them. The counter claim filed by defendant No.1 was barred by time w