IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SMT. JUSTICE ANURADHA SHUKLA st ON THE 21 OF FEBRUARY, 2024 SECOND APPEAL No. 912 of 2021 BETWEEN:-

JITENDRA, S/O SHRI DHUNNA LAL SHRIWAS, AGED ABOUT 39 YEARS, R/O GANESH SHANKAR VIDYARTHI WARD, HARDA, TEHSIL AND DISTRICT HARDA (MADHYA PRADESH)

.....APPELLANT (BY SHRI SANJAY PATEL - ADVOCATE)

AND SANJAY, S/O SHRI SOORAJ PRASAD JANGRE, AGED ABOUT 48 YEARS, R/O IN FRONT OF NARMADA MANDIR, GANESH SHANKAR VIDYARTHI WARD, TEHSIL AND DISTRICT HARDA (MADHYA PRADESH)

.....RESPONDENT (BY SHRI GAURANSH BHURRAK - ADVOCATE)

Reserved on : 19.02.2024 Pronounced on : 21.02.2024 This appeal having been heard and reserved for orders, coming on for pronouncement this day, the court passed the following:

ORDER

This appeal has been preferred to assail the impugned judgment and decree passed on 3.2.2021 by District Judge, Harda, in RCA No.3/2020 affirming the judgment and decree of Third Civil Judge, Class I, Harda, dated 27.8.2019 by which the civil suit RCSA No.75/2017 filed by appellant/plaintiff was dismissed.

2. The appellant shall hereinafter be referred to as "plaintiff" and respondent as "defendant".

3. Brief facts involved in the case are that the plaintiff is in possession of suit property, which is a shop situated on Harda-Indore Road; he filed a suit for specific performance of contract, which was allegedly executed in his favour on 17.5.2005 by defendant against a consideration of Rs.1,50,000/-; incidentally, this suit was filed in the year 2017; the plaintiff claimed that against the consideration of Rs.1,50,000/-, he paid Rs.20,000/- to the defendant and for this, plaintiff took a loan from J. K. Finance & Investments; it is also claimed that the defendant, with an object to grab the property, sent a false notice to the plaintiff on 22.2.2016 asking the plaintiff to vacate the suit shop; it was wrongly claimed in this notice that plaintiff was the tenant of defendant in this suit property; the relief of specific performance of contract was, therefore, prayed in the suit; defendant contested the suit by claiming that the alleged agreement to sell is a fabricated document and he never executed any such document in favour of plaintiff and, according to him, plaintiff was his tenant; after a suit filed for eviction against plaintiff, a false case for specific performance of contract was filed by the plaintiff; it was pleaded in written statement that the questioned agreement to sell should be sent for examination to a handwriting expert. It was, therefore, requested that the suit should be dismissed with costs. The learned trial court framed total six issues in the matter and recorded the evidence of both the sides; appellant examined total four witnesses, while defendant examined only himself as a witness; documents of Ex.P-1 to P-20 were produced in evidence; the trial court dismissed the suit holding that the execution of alleged agreement to sell dated 17.5.2005 and payment of Rs.20,000/- by plaintiff in consideration of purchase money were not proved;

under issue nos.3 and 4, it was held that the factum of readiness and willingness on the part of plaintiff and negligence on the part of defendant have also not been proved. The appellate court in first appeal confirmed the judgment and decree of dismissal of civil suit.

4. The grounds raised in this second appeal are that the findings given by the courts below regarding dismissal of civil suit are contrary to facts and law; it was falsely claimed by the defendant that the plaintiff was his tenant; this claim was taken up only after the execution of agreement to sell with a dishonest object to avoid the liability under the agreement to sell; findings given under the issues framed by trial court are perverse; plaintiff's witnesses, namely plaintiff himself (P.W.1) and Mohit (P.W.3) have very categorically proved the execution of agreement to sell and no credible evidence was produced in rebuttal by the defendant. It is, therefore, pr