JUDGEMENT

This first appeal has been preferred by appellants/defendants challenging judgment and decree dated 14.08.1995 passed by Additional Judge to the Court of District Judge, Hoshangabad in civil suit no.12A/78 whereby suit for specific performance of agreement of sale dated 29.08.1975 (Ex.P/1) has been decreed. 2. Facts in short are that original plaintiff-Babulal (now dead through LRs) instituted a suit on 12.07.1978 for specific performance of agreement of sale dated 29.08.1975 (Ex.P/1) on the allegations that defendants 1-2 (Gendalal and Mst. Gahnabai) entered into an agreement of sale with the plaintiff in respect of agriculture land Khasra nos.40/2, 40/3, 41/2, 42/2, 45/1, 45/3, 46/2 and 94/4 total area 10.88 acres situated in Mauza Ahalwada, Tahsil Harda for consideration of Rs.12,000/-, out of which an amount of Rs.8,800/- was paid in advance and sale deed was agreed to be executed on 13.05.1976 after payment of balance consideration amount, but the defendants did not execute sale deed despite issuance of notice to them and by filing reply dated 16.06.1976 refused to execute sale deed stating the transaction to be a loan transaction. Pleading continuous readiness and willingness to get executed sale deed in favour of the plaintiff, the suit was filed. In plaint, the plaintiff also sought alternative relief of refund of advance - 4 - consideration amount of Rs.8,915/- along with 6% interest from 29.08.1975 till realization of the amount. 3. The defendants 1-2 (Gendalal and Mst. Gahnabai) and defendants 3-5 (Narmada Prasad, Ramesh and Kailash) appeared and filed two sets of written statement(s) denying the plaint averments and contended that no agreement of sale was executed but it was a loan transaction. It is also alleged that defendant 1 vide registered Intazam-nama (settlement deed) dated 16.01.1971 transferred the suit land khasra no. 40/2, 40/3, 41/2, 45/3, 46/2, 42/2 and 94/4 total area 11.80 acres in favour of his sons (defendants 3-5), therefore, the defendants 1-2 had no right to execute the agreement of sale in question, hence the plaintiff is not entitled for decree of specific performance. With the aforesaid submissions, the suit was prayed to be dismissed.

4. On basis of pleadings of the parties, trial Court framed as many as 11 issues and recorded evidence of the parties and then after hearing arguments decreed the suit granting decree of specific performance against all the defendants vide judgment and decree dated 14.08.1995. 5. Learned counsel for the appellants/defendants submits that no agreement of sale was executed by defendants 1-2 in favour of the plaintiff and in fact it was a loan transaction because after execution of registered Intazam-nama dated 16.01.1971 (Ex.D/1) by defendant 1 in favour of defendants 3-5, defendants 1-2 had no right to execute agreement of sale of suit land and trial Court while deciding issue no.9 has wrongly held the Intazam-nama (Ex.D/1) to be a sham document that too without there being any relief in the plaint. He further submits that despite denial of agreement in question by sending reply to the notice on 16.06.1976, the suit was filed on 12.07.1978 i.e. after a period of more - 5 - than two years, which in the light of decision of Supreme Court in the case of U.N. Krishnamurthy (Since Deceased) Thr. Lrs. vs. A.M. Krishnamurthy AIR 2022 SC 3361 (para 40) could not have been decreed especially in the light of relief of refund of advance consideration already claimed vide relief clause (c) of the plaint. He also submits that plaintiff was not ready and willing to get executed sale deed within the period fixed in the agreement and factum of readiness and willingness has also not been established by legal representatives of original plaintiff who died during pendency of suit. In addition, he placed reliance on a decision of Supre