C A V Judgment

Per Radhakishan Agrawa l J.

(1) Challenge in this appeal filed under Section 96 read with Order 44 Rule 1 of the Code of Civil Procedure, 1908 by the appellant/ defendant is to the judgment and decree dated 26/08/2013 passed by the District Judge, Rajnandgaon (C.G.) in Civil Suit No. 03/A/2011; whereby the suit for specific performance of contract filed by the respondent/plaintiff was allowed.

(2) The averments in the plaint, in brief, are that the defendant entered into a written agreement dated 03/10/2009 with the plaintiff for sale of his house bearing Nazul Sheet No. 48-A, Plot No. 179, Area 54 Square Meters, situated at Juni Hatri, Rajnandgaon (in short “disputed house) for an amount of Rs. 11 Lakhs and out of the said amount the defendant obtained Rs. 11,000/- cash and account payee cheque of Rs. 40,000/-. According to the said agreement, sale deed was to be executed by the defendant by 31/03/2010. However, on 22/03/2010 the defendant sent a notice through his wife and minor son to the plaintiff stating therein that the disputed house being ancestral property, the defendant has not right to sell the same. Thereafter, the plaintiff sent a notice to them for doing registry of the disputed house as per the agreement whereupon they assured of doing the registry after about 7-8 months. However, in January, 2011, the plaintiff came to know that the defendant is trying to sell the disputed house to someone and when he contacted the defendant he did not give any satisfactory reply, therefore, the present suit for decree of specific performance of contract against the defendant has been filed.

(3) The defendant in his written statement denied execution of agreement dated 03/10/2009 with the plaintiff for sale of the disputed house in his favour and also denied receipt of any amount in this regard. He pleaded that in the year 2009, he had fallen ill and was in need of money for his treatment, he requested the plaintiff for giving him Rs. 51,000/- on credit and the plaintiff by taking undue advantage of the situation, got the signature of the defendant on blank papers and thereafter turned it into the sale agreement fraudulently with the help of his acquaintance who stood witnesses to the said agreement. Thus, the said agreement is illegal and forged. The disputed house is the ancestral property of the joint Hindu Family, on which the wife of the defendant Smt. Sunita and his son Vishal also have share but they have not been made a party. Therefore, the present suit is liable to be dismissed.

(4) On the basis of pleadings of the respective parties, the trial Court framed the issues for determination and after hearing Counsel for the respective parties, the oral and the documentary evidence adduced by them, by the impugned judgment and decree allowed the suit of the plaintiff directing the defendant to execute sale deed in respect of the disputed house in favour of the plaintiff after obtaining the remaining amount of Rs. 10,49,000/- from him within three months from the date of passing of the decree. Hence, this appeal by the defendant.

(5) Learned Counsel for the appellant/defendant submits that the Trial Court was not justified in passing the impugned judgment and decree by ignoring the oral and documentary evidence adduced by the defendant. The defendant never entered into any agreement for sale of the disputed house to the plaintiff and he did not receive any amount towards the said sale consideration from the plaintiff. In fact in the year 2009, the defendant had fallen seriously ill and was in need of money for his treatment. The defendant obtained Rs. 51,000/- on credit from the plaintiff. However, the plaintiff taking advantage of the situation, got signature of the defendant on blank papers and subsequently created agreement by misusing those papers. The disputed house is the ancestral property of the defendant and as such his wife and son also have right over the said property. It is a well settled principle of