JUDGMENT

(24/08/2021)

Both the appeals have been heard together and are being decided by this common judgment.

2. These appeals have been preferred by the appellants against the common judgment and decree dated 28.01.2021 passed by Vth Additional District Judge, Katni in R.C.A. Nos.65/2018 and 64/2018 affirming the judgment and decree dated 15.03.2018 passed by Second Civil Judge Class II, Katni in RCS Nos.2500185A/2016 and

2500235A/2016.

3. In Civil Suit No.2500185A/2016, the respondents/ plaintiffs (Balram and another) have claimed possession, declaration, permanent and mandatory injunction of suit property bearing Khasra No.513, admeasuring 0.26 hectares situated at Village Simrakalan PH No.26, Tahsil Reethi, District Katni. The respondents/plaintiffs pleaded that they are the legal heirs of deceased-Phaguniya Bai and co-owners of the suit property, which was devolved by them, after the death of their parents. The respondent (Balram) further pleaded that, the appellant/defendant No.1, son of appellant/defendant No.2, started residing in the ‘pacca’ house. Thus, cause of action arose on 09.06.2016, when he dug the foundation and started construction over the suit land. The said suit was partly allowed and the appellants (defendants therein) were directed to remove the constructed house and fencing over the suit property and also to deliver the vacant possession thereof to the plaintiffs.

4. The admitted facts are that the respondent (Balram) had taken a loan from the appellants, but the appellants are alleging the same to be a transaction and it is a consideration for agreement to sale in respect of part of suit property admeasuring area 0.07 hectare. It is also not in dispute that the suit property belongs to the respondents.

5. It is also not disputed that a ‘pacca’ house and fencing have been constructed on the suit property by the appellants (Sant Kumar), which has been shown with letters A, B, C & D in the suit map. For that, respondent filed a police complaint, but no action has been taken by the police in that regard. There is a signature of the respondent on the agreement to sale dated 24.06.2015.

6. In Civil Suit No.2500235A/2016, appellants/plaintiffs (Sant Kumar Rai @ Bihari Lal and another) have claimed specific performance of agreement to sale dated 24.06.2015 and grant of permanent injunction of the same suit property bearing Khasra No.513, admeasuring 0.26 hectares, situated at Village Simrakalan PH No.26, Tahsil Reethi, District Katni. The said suit was dismissed by the trial Court.

7. The appellant has not disputed the ownership of the respondents over the suit property, but in written statement he claimed that he was in possession of the suit property with the oral consent of respondent/plaintiff No.1 (Balram), as an agreement to sale was executed on 24.06.2015. It was submitted that 10-12 years ago, the respondents had taken loan of Rs.12,000/- from the appellant No.1 and when on 24.6.2015 he requested for registration of the sale deed in respect of the suit property, they have not executed the same on the basis of pendency of partition proceedings between him and other co-owners. Since there was agreement to sale which was executed between them on 24.06.2015, therefore, the Police have not taken any action on the complaint filed by the respondents. In this case, appellant No.2 is unnecessary party. No cause of action arose against him, therefore, he prayed to dismiss the suit with cost.

8. In the other suit, the appellants/plaintiffs (Sant Kumar and another) have claimed decree for specific performance of agreement to sale dated 24.6.2015 and for grant of permanent injunction stating almost the same things which are pleaded by him in his written statement in Suit No.2500185A/2016. In this suit, the appellants have also pleaded that the respondent No.1 received total consideration of Rs.25,000/- and the appellants are ready to pay remaining amount to him at the time of registration of sale deed, which was refused