HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Second Appeal No. 35/2019

Onkarnath S/o Shri Rawatnath, Aged About 79 Years, R/o

Bamblu, Tehsil And District Bikaner.

----Appellant

Versus

1.

Lrs Of Gangaram, S/o Shri Tikuram (Since Deceased

Through His Lrs)

2.

Nanu W/o Late Shri Gangaram, Bamblu, Tehsil And

District Bikaner.

3.

Mamraj S/o Late Gangaram, Bamblu, Tehsil And District

Bikaner.

4.

Rampratap, Bamblu, Tehsil And District Bikaner.

5.

Mirga W/o Mamraj, D/o Late Gangaram, R/o Himmatasar,

Tehsil And District Bikaner.

6.

Sugni W/o Jetharam, D/o Late Gangaram, R/o

Himmatasar, Tehsil And District Bikaner.

7.

Sajna W/o Padmaram, D/o Late Gangaram, R/o Upani,

Tehsil Sridungargarh, District Bikaner.

8.

Sita W/o Nanuram, D/o Late Gangaram, R/o Bidasariya,

Tehsil Nokha, District Bikaner.

9.

Smt. Badhu W/o Ramkishan, D/o Late Gangaram, R/o

Upani, Tehsil Sridungargarh, District Bikaner.

----Respondents

For Appellant(s)

:

Mr. Dalip Singh Rajvi.

For Respondent(s)

:

HON'BLE MR. JUSTICE ARUN BHANSALI

Order

15/03/2021

This appeal is directed against judgment and decree dated

17.11.2018 passed by Additional District No.1, Bikaner (‘the first

appellate court’), whereby, the appeal filed by the respondents

against the judgment and decree dated 13.11.2007 has been

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[CSA-35/2019]

allowed and the decree for specific performance passed by the

trial court has been set aside.

The suit for specific performance was filed by the appellant –

plaintiff inter alia with the submissions that respondent –

Gangaram was in requirement of Rs.35,000/- for his personal and

household expenses and, therefore, for the agriculture land

comprising in Khasra No.594 admeasuring 11.34 hectare, an

agreement to sale dated 14.5.2001 was entered into and it was

agreed that the sale deed would be executed in five months.

When the defendant was required to get the sale deed registered,

he started avoiding and on 3.11.2001 refused. It is claimed that

the plaintiff was ready and willing to purchase the stamps and pay

the registration fees and, therefore, prayed that sale deed be got

registered in his favour and the possession of the land be handed

over to him.

Written statement was filed denying the execution of the

agreement. It was claimed that the same was fraudulent and

concocted and that the same did not fall within the definition of an

agreement and, therefore, the suit be dismissed.

Based on the averments of the parties, the trial court framed

four issues on 5.2.2003. Whereafter on 19.8.2004, two more

issues were framed. On behalf of the plaintiff, two witnesses were

produced and the agreement was exhibited. On behalf of the

defendant, two witnesses were produced and report of expert was

produced as Ex.A/1. One more document i.e. death certificate of

Kishannath was produced.

After hearing the parties, the trial court came to the

conclusion that the plaintiff from his evidence and that of

Narayannath and from cross-examination of Sahiramnath has

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proved that the defendant had executed the agreement after

receiving Rs.35,000/- and placed his thumb impression from

which, Sahiramnath and Kishannath signed as witnesses, which

was admitted by Sahiramnath. The plaintiff was always ready and

willing to perform his part of the contract.

The issue regarding the agreement being concocted was

decided against the defendant. On the admissibility of the

document, it was found that as the deficient stamp duty alongwith

penalty has been paid, the objection had no substance. Ultimately,

the suit was decreed alongwith costs for specific performance of

the contract.

Feeling aggrieved, the defendant filed first appeal.

The first appellate court after hearing the parties decided the

appeal issue-wise and came to the conclusion that the document

(Ex.1)