IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA ON THE 19th OF JULY, 2023 FIRST APPEAL No. 335 of 2001 BETWEEN:-

KAKU PROPERTIES LIMITED MUMBAI THROUUGH DR. SONAM MAHENDRA VYAS W/O LATE SHRI MAHENDRA VYAS PARAS APARTMENT ROKADIYA LANE BORIWALI WEST MUMBAI / PARAS APARTMENT ROKDIYA LANE BORIWALI WEST MUMBAI (MAHARASHTRA)

.....APPELLANT (SHRI ASHOK KUMAR SURAJMAL GARG - SENIOR ADVOCATE WITH MS POORVA MAHAJAN – ADVOCATE)

AND

1. REWASHANKAR S/O MISHRILAL (DECD.) THR. LRS (A) SMT. KANTABAI W/O LATE SHRI REWASHANKAR JAISWAL, AGED ABOUT 65 YEARS, VILLAGE NIMRANI TEHSIL KASRAWAD (MADHYA PRADESH)

2. REWASHANKAR S/O MISHRILAL (DECD.) THR. LRS (B) JEEVAN S/O LATE SHRI REWASHANKARJI JAISWAL, AGED ABOUT 48 YEARS, OCCUPATION: AGRICULTURIST VILLAGE NIMRANI TEHSIL KASRAWAD (MADHYA PRADESH)

3.

REWASHANKAR S/O MISHRILAL (DECD.) THR. LRS (C) SMT. INDUBALA W/O RAMESHWAR JAISWAL Signature Not Verified Signed by: JYOTI D/O LATE SHRI REWASHANKARJI JAISWAL, AGED ABOUT 45 YEARS, OCCUPATION: HOUSE HOLD WORK MULTHAN TEHSIL BADNAWAR (MADHYA PRADESH)

4. REWASHANKAR S/O MISHRILAL (DECD.) THR. LRS (D) MAHESH S/O LATE SHRI REWASHANKARJI JAISWAL, AGED ABOUT 41 YEARS, 13/1, SOUTH HARSIDHI BEHIND COMMUNITY HALL AND NEAR HARISIDHI MANDIR INDORE (MADHYA PRADESH)

5. REWASHANKAR S/O MISHRILAL (DECD.) THR. LRS (E) SMT. MADHUMATI W/O MANGILAL JAISWAL (MANGU JAISWAL) D/O LATE SHRI REWASHANKAR JAISWAL, AGED ABOUT 39 YEARS, OCCUPATION: HOUSEHOLD WORK RELAX POINT RESTAURANT MANDAV (MADHYA PRADESH)

6. STATE OF MADHYA PRADESH THROUGH DISTRICT COLLECTOR KHARGONE (MADHYA PRADESH)

.....RESPONDENTS (MS SEEMA SHARMA - ADVOCATE)

………………………………………………………………………………………

This appeal coming on for order this day, the Court passed the following :

ORDER

This appeal under Section 96 of the CPC has been preferred by the unsuccessful plaintiff/appellant being aggrieved by the judgment and decree dated 27.02.2001 passed in Civil Suit No. 10-A/2000 by the District Judge, East Nimar, Mandleshwar, whereby his claim for specific performance of contract dated

25.08.1995 (Exhibit-P-3) has been dismissed.

Signature Not Verified Signed by: JYOTI

2. As per plaintiff on 25.08.1995 an agreement to sale with respect to the suit land bearing Survey No. 168/2 area 5.159 hectare i.e. 12.74 acre, Gram “SATTRATI”, Teshsil Kasrawad, District East Nimar was executed between the parties on terms and conditions as stipulated therein. Upon failure of the defendant No.1 to comply with the terms of the contract a suit was filed by plaintiff for specific performance of contract and for permanent injunction restraining defendant No.1 from alienating the suit land.

3. Despite service of summons upon him defendant No.1 did not appear before the trial Court and was proceed against ex-parte. Thereafter, the plaintiff produced various documents and led oral evidence in support of his contentions. The documents brought on record were the agreement to sale dated 25.08.1995 (Exhibit-P-3) in which the entire description of the suit land was the same except that the village was mentioned as “SAMBHARI”. The other documents produced by plaintiff also stated the name of the village to be such.

4. By the impugned judgment and decree plaintiff’s claim has been dismissed by the trial Court only on the ground that the agreement to sale between the parties was in respect of land situated at Gram “SAMBHARI”, whereas the plaintiff has instituted the claim in respect of land situated at Gram “SATTRATI”which is different and that between the parties no agreement to sale has been executed in respect of any land situated at Gram “SATTRATI”.

5. Learned Senior counsel for the plaintiff has submitted that there was no dispute between the parties as regards the identity of the suit land particularly more so when defendant No.1 has not even entered appearance before the trial Court to state that the agreement between the parties was with respect to different land and not the land in respect of which specific performance has been s