IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA ON THE 1 st OF APRIL, 2023 SECOND APPEAL No. 651 of 2005 BETWEEN:-

UDAYCHAND, AGED ABOUT 56 YEARS, SON OF LALLURAM RATHORE, R/O 90, BHAISASUR MANDIR, BEHIND HANUMANTAL POLICE STATION, KHERMAI WARD, JABALPUR (DEAD)

THROUGH LRS :-

1. SMT.SHASHI PRATHA RATHORE, AGED ABOUT 56 YEARS, WD/O LATE UDAYCHANDRA RATHORE, R/O HOUSE NO.72 (OLD) 90 (NEW), KHERMAI WARD, JABALPUR.

2. SMT.EKTA RATHORE, AGED ABOUT 35 YEARS, D/O UDAYCHANDRA RATHORE, W/O SATISH RATHORE, R/O 8/27, RISALA BAZAR, OPPOSITE GURUNANAK DAIRY, MURAR, GWALIOR (NOW DEAD)

THROUGH LRS :-

A. SATYAM RATHORE, AGED ABOUT 22 YEARS;

B. SHUBHAM RATHORE, AGED ABOUT 20 YEARS;

BOTH S/O SATISH RATHORE, R/O 8/27, RISALA BAZAR, OPPOSITE GURUNANAK, MURAR, GWALIOR, M.P.

3. YOGESH RATHORE, AGED ABOUT 33 YEARS, S/O LATE UDAYCHANDRA RATHORE, R/O H.NO.72 (OLD), 90 (NEW), KHERMAI WARD, JABALPUR.

4. SMT.KAVITA RATHORE, AGED ABOUT 31 YEARS, D/O UDAYCHANDRA RATHORE, W/O MANOJ RATHORE, R/O 18/1, PATHAR GALI, NOOR MAHAL ROAD, IMAMI GATE, BHOPAL.

5. SMT.NAMITA RATHORE, AGED ABOUT 28 YEARS, D/O UDAYCHANDRA RATHORE, W/O SACHIN RATHRE, R/O BLOCK NO.23, NEW PANCHJYOTI HOUSING SOCIETY, VIJAY NAGAR, DARNA CAMP, DEOLALI, NASIK, MAHARASHTRA.

.....APPELLANTS (NONE FOR THE APPELLANTS)

AND SMT.PREMWATI BAI, AGED ABOUT 58 YEARS, W/O RAMSWAROOP SONI, R/O 382, BHANTALAIYA WARD, JABALPUR (MADHYA PRADESH)

.....RESPONDENTS (NONE FOR THE RESPONDENTS)

(SHRI YOGESH RATHORE, APPELLANT NO.1(3) IS PRESENT IN PERSON)

“Reserved on : 28.03.2023”

“Pronounced on : 01.04.2023”.

This appeal having been heard and reserved for judgment, coming on for pronouncement this day, the court passed the following:

JUDGMENT

1. The lawyers were on strike and the Appellant No. 1(3) appeared in person and requested that the matter has already been adjourned on various occasions, therefore, the same may be heard on any early date. He also expressed his readiness to argue the matter. Accordingly, he was heard at length.

2. This Second Appeal under Section 100 of CPC has been filed against the Judgment and Decree dated 10-12-2004 passed by 12^th Additional District Judge (Fast Track Court), Jabalpur in R.C.A. No. 19A/2004 arising out of Judgment and Decree dated 28-2-2004 passed by 3^rd Civil Judge Class 1, Jabalpur in C.S. No. 126-A/2003.

3. The facts necessary for disposal of present appeal in short are that the plaintiff/respondent instituted a suit against original defendant Udaichand for specific performance of contract pleading interalia that the defendant is the owner of house number 382, 383/1 standing on block 36, plot 94, situated at Bhantalaiya ward, Jabalpur. On 23-3-1979, the defendant had agreed to alienate house no. 382, Bhantalaiya Ward, Jabalpur admeasuring about 12 ½ x 31 feets for a total consideration amount of Rs. 13,500/- and delivered the possession of the house in question to the plaintiff. The plaintiff also paid Rs. 12,500/- towards the part payment of consideration of house. Accordingly on 18-6-1980, the defendant also executed an agreement to sell. The defendant had also agreed to get the mortgaged redeemed as the property in question was already mortgaged. The plaintiff had also agreed to sell the suit house with clear title free from all encumbrances. The defendant also agreed to get a water tap connection in the house no. 382 at his cost and also to pay the electricity bill for the period upto 23-3-1979. However, inspite of repeated requests, the sale deed was not executed. In the month of December 1989, the defendant made a further request to the plaintiff to purchase the remaining part of the house bearing no. 383 and 383/1. It was represented by the defendant that from the amount which he will receive from the sale of remaining part of house, he would pay all the dues to Collector, Mandla, and then would execute the sale deed. The plaintiff also agreed to purchase the remaining part of the house for a consideration of Rs. 25,000/-. An amou