ORDER

This second appeal has been preferred by the plaintiff challenging the judgment and decree dated 28.07.2018 passed by 3rd Additional District Judge, Multai, District Betul in Civil Appeal no.17-A/17 affirming the judgment and decree dated 29.07.2016 passed by 2nd Civil Judge Class II, Multai, District Betul in Civil Suit No 1-A/2013, whereby suit for specific performance of an agreement dated 11.08.2011 has been dismissed holding it to be not a proven document.

2. In short the facts are that the plaintiff instituted suit with the allegations that he is owner and in possession of land survery no. 206/3 area 2.447 hectare situated in Mouza Chichanda, Tahsil Multai and he being in need of money borrowed an amount of Rs.1,25,000/- (one lac twenty five thousand only) from defendant 1 and in lieu thereof executed sale deed of an area 0.696 hectare out of total area 2.447 hectare of Khasra No.206/3, with the condition that after two years the plaintiff shall repay the amount of sale consideration along with interest, in total Rs. 1,50,000/- (one lac fifty thousand only), and the defendant no 1 shall reconvey the property in favour of the plaintiff and till that time the plaintiff shall remain in possession. It is alleged that on the date of execution of sale deed dated 11.08.2011 (Ex.P/1), an Agreement (Ex.P/9) to reconvey the property was also executed on the same date i.e on 11.08.2011. With the aforesaid allegations the suit for specific of agreement dtd. 11.08.2011 (Ex. P/9) was filed.

3. The defendant 1 appeared and filed written statment denying the plaint allegations and contended that he purchased the land in question vide registered sale deed (Ex.P/1) and paid entire consideration of Rs.1,50,000/- and since then he is in possession of the land. It is also contended that the agreement dated 11.08.2011 (Ex.P/9) is a forged and fabricated document and being unstamped and unregistered, is not admissible in evidence. With these contentions the suit was prayed to be dismissed.

4. The defendant 2 State being proforma party did not file any written statement and was proceeded ex-pate.

5. On the basis of pleadings, learned trial Court framed issues and recorded evidence of the parties and upon due consideration of the entire material avaiable on record, dismissed the suit vide judgment and decree dated 29.07.2016, which by first appellate Court in the civil appeal filed by the plaintiff-Hemraj, has been affirmed vide judgment and decree dated 28.07.2018. Fact remains that the respondent/defendant 1 Laxman has during pendency of the suit, sold the property to the respondents 3-4 Abdul Hafeez and Sajid Khan.

6. Learned counsel for the appellant submits that learned Courts below have erred in dismissing the suit without taking into consideration the real intention of the parties and infact no sale deed was executed but it was executed as a security of the loan transaction, which is clear from the Agreement (Ex.P/9), executed between the parties on the same date. He submits that dispite the fact that the Agreement (Ex.P/9) was impounded and requisite stamp duty and penalty was paid, learned Courts below have erred in not considering the document (Ex.P/9). Learned counsel further submits that the agreement in question (Ex.P/9) has been proved by examination of the attesting witnesses, but in spite of all the said proven facts, learned Courts below have erred in dismissing the suit.

7. Heard learned counsel for the appellant/plaintiff and perused the record.

8. From bare perusal of the sale deed dated 11.08.2011 (Ex.P/1), it is clear that there is no condition/recital of mortgage or transaction of loan in it, therefore, prima facie it is a clear document of sale. The sale deed (Ex.P/1) and Agreement (Ex.P/9) are said to be executed on the same date but apparently the sale deed was attested by witnesses Panju and Bablu and the Agreement (Ex.P/9) has been signed by other/